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All Reporters → p → Volume 259

Opinions in p Volume 259

This is an action for damages. In their first cause of action plaintiffs sue to recover $5,250 for hospital bill and personal injury to Lucy Mintun, and in their second cause of action claim $157.69 *Page 660 for damages to their automobile. It is alleged that on November 30, 1922, the plaintiff, J. Elmer Mintun, was driving on the highway in a southerly direction near the village of Hanson; that...
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A statement of this case appears in Swinehart v. Turner,38 Idaho 602, 224 P. 74, the present action being based upon the amended complaint filed after this court had decided that the prior complaint stated a cause of action. There was evidence to support the finding of the lower court that notices were published and posted according to the statute. Raising the question of the failure of the probat...
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ROSIE Koshir died intestate April 11, 1922, leaving her husband as her sole heir at law. The only property of which she died seized and possessed was an undivided one-half interest in real estate situate in Pueblo county, the other undivided one-half interest in which was owned by her husband. The husband, neither as the sole heir at law nor next of kin, applied for letters of administration withi...
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THE defendants in error obtained a decree canceling certain promissory notes, and restraining the plaintiff in error from foreclosing a deed of trust given to secure the payment of the notes. On April 23, 1924, Grattan sold to the Wilsons the furniture and other personal property in the Carlton Hotel, in Denver, together with a lease of the premises. No cash was paid to Grattan; but the Wilsons as...
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The plaintiff, a corporation, was organized under the laws of the state of Washington prior to the year 1917 as a trust company. Under the act of 1917, Rem. Comp. Stat., § 3231 [P.C. § 274], certain powers were conferred upon trust companies, the first of which is – "To execute all the powers and possess all the privileges conferred on banks." Laws of 1917, p. 281. It is stipulated in this case th...
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On September 29, 1924, one Carrie L. King died intestate in Snohomish county, leaving an estate therein consisting of a community interest in real and personal property, subject to administration under the probate laws of the state. At the time of her death she was, and for some fourteen years prior thereto had been, the wife of one Thomas A. King. Within a short time following the death of Mrs. K...
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In this action, the respondent, Western Bond Mortgage Company, recovered against the appellants Chester and Chambers for the wrongful conversion of an automobile truck. The action was tried by the court sitting with a jury. The court, however, in its instructions, took from the jury all questions except the question of the value of the truck. The jury found the value to be $200, and it was for th...
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This action was brought to recover damages for personal injuries. The cause was tried to the court and a jury and resulted in a verdict in favor of the plaintiff in the sum of two thousand dollars. A motion for new trial being made and overruled, judgment was entered upon the verdict, from which the defendant appeals. On the morning of February 18, 1926, as the respondent alighted from a street ca...
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Tbe Trenary Service & Sales, Inc., was formerly a retail dealer in automobiles, having its *126 principal place of business in tbe city of Spokane. While it was so in business, it received, on January 15,1926, from the appellant Packard Motor Company, an automobile of that company’s manufacture, under a trust agreement. Tbe agreement, after reciting tbe advantages wbicb accrue to a...
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A.M. Laughney is a licensed and practicing osteopathic physician and surgeon of this state. A duly verified complaint charging him with unprofessional conduct, as defined by Rem. Comp. Stat., § 10063 [P.C. § 4303-10], was filed with the director of licenses of the state. The complaint charged him with exceeding the limit of advertising prescribed by the regulations in that statute in that, in dail...
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Four defendants, boys of high-school age, were jointly charged by an information filed in the superior court of Spokane county with the crime of joy-riding. *Page 162 One of the defendants was transferred to the juvenile court; the three remaining were tried in the superior court. [1] The evidence on the part of the state, in so far as it tended to connect these defendants with the crime, consist...
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The respondent Alert Transfer Storage Company is engaged in the business of transporting freight for hire in automobile trucks over the public highways of the state of Washington, under a *Page 112 license authorizing it so to do, issued by the public authorities of the state. The respondent Pacific Automobile Indemnity Exchange is the surety on its official bond. A part of the highway over whic...
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The appellant LeDoux was the companion of Millspaugh, mentioned as such in the case of Millspaugh v. Alert Transfer Storage Co., ante p. 111, 259 P. 22. His action is to recover damages suffered in the accident therein described. It was tried jointly with that case, and, like it, was dismissed with prejudice. His case differs from the cited case only in the circumstance that he was riding on the m...
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The plaintiff, Dr. Sweet, commenced this action in the superior court for Lewis county, seeking recovery of compensation for surgical and medical treatment rendered by him in his hospital in Centralia to the defendant Douge, incidental to the breaking of the femur of his right leg at a point about midway between the hip and knee joints. The defendant answered, denying that the services were of an...
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This is an action by Roy B. Southworth and his wife against the city of Seattle, to recover *Page 139 for damages to their residence property by reason of the construction and operation, immediately near their property, of a sewage disposal plant. There was a verdict for the plaintiffs in the sum of $3,250, more than one-third of the value of the property without the nuisance, and from a judgment...
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For some fifteen years prior to March 8, 1926, Wilbur N. Joyner had been conducting a wholesale business in the city of Spokane under the trade name of Physicians Surgeons Supply Co. Shortly after having commenced business, he filed with the county clerk of Spokane county a proper certificate as required by Rem. Comp. Stat., § 9976 [P.C. § 4356]. The business had prospered, sales running from for...
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By an information filed in the superior court of Pierce county, the appellant, John McCormick, was charged with the crime of grand larceny. On a trial by jury, he was convicted of the charge, and appeals from the judgment and sentence pronounced against him. The state’s evidence tended to show that the home of one Henrietta Winderlund was entered during her absence therefrom, and a percolator, ...
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The appellant J. T. Hayes Realty Company is a corporation organized pursuant to the laws of this state. The respondents Horace Tarbox, Ruth Tarbox Gray, Bessie T. Shoemaker, "Winifred T. Kruse and M. D. Tarbox, together with E. J. Browne, W. C. Moore, J. A. Cochrane, Cuthbert D. Potts and S. M. Jones, were on August 31, 1920, and for sometime prior thereto, the owners of the capital stock "of t...
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On March 12, 1923, Anna Reimer died intestate in Skagit county, in this state. Her surviving husband, John Reimer, petitioned for and was granted letters of administration upon her estate. In the inventory of the property of the estate, he listed as property subject to administration, community personal property of the approximate value of $2,700. At the time of the death of the wife, the parties ...
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This action was brought by a taxpayer for and on behalf of Ferry county. To the amended complaint, which will be referred to as the complaint, a demurrer *Page 123 was interposed and sustained. The plaintiff elected to stand upon the complaint and refused to plead further. From the judgment entered dismissing the action, he appeals. The facts, as stated in the complaint, may be summarized as foll...
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The appellants were contractors engaged in the erection of a building in the city of Cle Elum during the year 1924. During the course of the erection of the building, a water pipe was carried from the lot line across the sidewalk, and one Dorothy Mitchell, while walking along the sidewalk, fell over this water pipe, was injured, brought suit against the *Page 158 city, and recovery was had. The p...
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OPINION OF THE COURT The district court of De Baca county awarded a peremptory writ of mandamus against the board of county commisioners of that county, commanding them to construct for the county a courthouse and jail at Ft. Sumner, which is the county seat of that county. The action of the court was based upon the provisions of section 17, chapter 11, Laws 1917, which i...
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THE COURT. A hearing in this court was granted after decision by the district court of appeal in and for the third appellate district (53 Cal.App. Dec. 813), for the reason that, while satisfied with the reasoning of said opinion, we arrived at the conclusion that the order of reversal and direction to the trial court with which the same concludes should be modified. We therefore adopt the opinion...
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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 476 Motion to reinstate appeal heretofore dismissed by this court for the reason that appellant had escaped from jail subsequent to the taking of said appeal, and was a fugitive from justice at the time of the dismissal thereof. The appellant was convicted of...
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The plaintiff brought this suit to foreclose a a mortgage upon certain lands situated in Glenn County given by the defendants I.G. and Mattie B. Zumwalt to plaintiff to secure the payment to the latter of a promissory note, dated January 13, 1920, for the sum of $42,601.30. The complaint is in the usual form in foreclosure proceedings. It alleges, however, that the appellant Western Canal Company ...
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This is an application for a writ of habeas corpus, wherein the petitioner is attacking the sufficiency of two complaints, one charging him with possession of a certain still which was alleged to have been "designed, used and intended to be used for the manufacture of alcoholic intoxicating liquors for beverage purposes, containing alcohol of more than one-half of one per cent by volume," which is...
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This is an appeal from a judgment in favor of respondent entered upon the verdict of the jury awarding $2,000 damages against appellant, in an action to recover $23,080. Appellant urges as grounds for a reversal of the judgment: 1. The verdict is contrary to the evidence and there is a variance between the pleadings and the proof (a) The evidence of plaintiff does not establish any definite or val...
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This is an application for re-admission to the bar after disbarment. Petitioner was disbarred in 1918 because of the commission of an act involving moral turpitude. The grounds upon which he was excluded from the profession are shown in the opinion In re Cruickshank, 47 Cal.App. 496 [190 P. 1038], by which the judgment of disbarment was affirmed. The present proceeding was sent to referees with di...
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The petition has been received by the court by mail from Leavenworth, Kansas, with request by letter that the court act thereon and grant the writ. The petition shows that on December 20, 1926, an indictment was returned into the Superior Court of Orange County, charging the petitioner herein with the crime of felony, committed by wilfully, etc., escaping from the county jail of said county while ...
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This is an appeal from a judgment of the superior court annulling, upon writ of review, an order of the State Board of Dental Examiners whereby the license of respondent to practice dentistry in the state of California was revoked. The questions to be determined are whether there was any testimony adduced before the board showing that respondent was chargeable with knowledge that his unlicensed em...
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The pleadings and the evidence in this case show that the plaintiff had an adopted son named John Phillips Godfrey and that he and the defendant in this action intermarried on or about February 3, 1922; that the plaintiff then resided at her home on Western Avenue, in the city of Los Angeles; that shortly after their marriage John Phillips Godfrey and his wife removed from a hotel to a residence w...
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By an award of the Industrial Accident Commission dated November 12, 1923, compensation in the sum of $5,000, payable in weekly payments, was allowed against the employer’s insurance carrier, Fidelity and Casualty Company of New York, and in favor of Cora M. Deranleau, surviving wife of Michael Deranleau, who was killed by accident on June 30, 1923. Cora M. Deranleau died on the thirteenth day of...
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The only ground of appeal presented by defendant consists of a claim that he was compelled to accept counsel not chosen by him, and was denied the right to present his own defense without counsel. At the time of entering defendant's plea he was represented by attorneys, who thereafter at the defendant's request were permitted to withdraw from the case. The court then asked the public defender "in ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 243 This is an appeal by the People from an order granting a new trial. The respondent and two others were tried on an indictment containing nine counts, of which the first charged a conspiracy by the defendants to obtain money by false pretenses from Mrs. Ca...
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THE COURT. The hearing by this court was granted herein after decision by the district court of appeal in and for the third appellate district, wherein the judgment of the trial court was affirmed, in order that further consideration might be given by this court to the question presented upon this appeal. Upon such further consideration this court is satisfied with the correctness of the decision ...
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This was an action in replevin to recover an automobile. Defendant, as constable, levied an attachment upon the automobile in a suit by a creditor. Plaintiff herein claims against the defendant and superior to the attaching creditor because of a chattel mortgage. Judgment was for defendant upon the ground that plaintiff's chattel mortgage was void. The evidence showed the mortgage was executed in ...
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Petitioner was admitted to the bar of California in 1889. He took up his residence in San Diego in 1908 and engaged in a lucrative law practice in that city from that time to the period of his disbarment. The judgment *Page 114 which thrust him from the profession was entered January 9, 1922, pursuant to an accusation which was filed September 6, 1921. The grounds of the accusation are stated in ...
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Plaintiff sued upon a promissory note in the sum of $3,500. The cause was tried before a jury and resulted in a verdict in favor of the defendants. From the judgment following the verdict the plaintiff has appealed upon a typewritten record. The litigation arises out of a written contract, executed July 31, 1922, wherein the plaintiff sold to the defendants a restaurant located in the city of Berk...
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A proceeding in certiorari has been instituted herein for the purpose of reviewing and having annulled an order made by respondent, as justice of the peace, setting aside a default judgment, the ground of the application being that the motion pursuant to which said order was made was not presented within the limitation of time fixed by statute. The facts are as follows: Petitioner brought an actio...
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Defendant appeals from a judgment of six thousand dollars upon the ground that the court applied the wrong measure of damages. Defendant leased to plaintiffs a tract of rice land in Sutter County for the term of three cropping seasons. Plaintiffs paid six thousand dollars rent in advance which was, as the lease stated, the rent for all the first year and part of the second. Owing to defendant's fa...
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This is an action brought by plaintiff to recover from defendants $11,500, together with interest and attorney's fees, alleged to be due and owing on a certain promissory note and assigned to Farmers and Merchants National Bank by F.C. Trickey, the payee named in the note, which assignment is alleged to have been made before maturity and in the usual course of business. The complaint is in the usu...
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[1] This appeal presents but one question for our determination: Shall the action of the superior court in refusing to permit the defendant to withdraw his plea of guilty and enter a plea of not guilty, be reversed or affirmed? The contention of the defendant is briefly stated *Page 195 by his counsel to be that through the representations and assurances of his attorney he was induced and persuad...
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Habeas corpus. Petitioner alleges that he has been held to answer, after an examination in the police court of the city and county of San Francisco, without reasonable or probable cause, of violating section 476a of the Penal Code, relating to the crime of issuing a bank check with intent to defraud. It appears from the transcript of the proceeding had before that court that petitioner at some tim...
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This is an appeal by the defendant from an order of the court below denying defendant's motion to set aside a default judgment. The motion was heard upon affidavits under the provisions of section 473 of the Code of Civil Procedure. The facts as shown by the affidavits were briefly as follows: Defendant herein was a defendant in a criminal prosecution in the police court growing out of the same au...
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Plaintiff sought by this action of partnership accounting to require defendant to pay one-half of the losses sustained in the purchase and sale of two carloads of catsup. Defendant denied any partnership relation and asserted that the loss, if any, fell upon plaintiff alone. The trial resulted in a judgment for defendant. [1] Plaintiff appeals, claiming that the testimony shows enough undisputed f...
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Action for damages for breach of warranty. The allegations of the complaint, in so far as they are necessary for a discussion of the question here involved, recite in substance that on or about the fourteenth day of December, 1922, plaintiffs called upon defendant company with the object of purchasing from it certain seed barley to be used for planting, and defendant thereupon sold the same to the...
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Certiorari to review an award of the Industrial Accident Commission. It appears from the petition that on or about April 20, 1926, respondent Thomas J. Lee filed application for adjustment of claim with the Industrial Accident Commission against respondents Allen Bros., Inc., and Federal Mutual Liability Insurance Company, its insurance carrier, wherein he alleged that on December 3, 1923, *Page 1...
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This action was filed May 26, 1923. The complaint alleged that within four years last past defendants became indebted to Benjamin B. Tuttle, who died November 29, 1921, in the sum of $2,000 upon an open book account for moneys loaned to defendants. Defendants denied the loan, alleged a gift, and set up the statute of frauds. Plaintiff’s proof consisted of offering in evidence a memorandum-book ...
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The respondent brought an action to quiet his title against defendant Albert C. Russell and defendant and appellant Kern-Torrance Petroleum Corporation in and to the land and premises described in the complaint. The defendant Albert C. Russell failed to appear and answer the complaint within the time allowed and his default was regularly entered. The appellant Kern-Torrance Petroleum Corporation a...
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The petitioner Valencia is in custody pursuant to a warrant issued by the justice of the peace of El Centro township, in the county of Imperial. A complaint had been filed, charging that defendant Valencia had committed the crime of forgery, with intent to defraud one Luis Sanchez. After examination before the magistrate, defendant was held to answer to said charge. Petitioner contends that the...
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Defendant was convicted of the crime of rape, alleged to have been committed on one Carmen Mancha, a female aged about fifteen years. The appeal is from the judgment and from an order denying a motion for a new trial. It is contended that the evidence was insufficient to support the verdict and that the admission of certain testimony over objection and the giving of an instruction to the jury were...
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Mamie Baldwin, in whose behalf the petition was filed, is held in custody under two judgments of the municipal court of the city of Los Angeles, in causes numbered 07879 and 08870, which by stipulation were tried jointly before a jury. Each complaint charged the commission of a misdemeanor by having in possession alcoholic intoxicating liquors, etc. Each complaint alleged that the defendant, befor...
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An award was made by the Industrial Accident Commission in favor of respondent Emily Jane Moffett and against petitioner Pacific Employers Insurance Company on account of the accidental death of Mrs. Moffett's son, the award being based upon a finding that on September 2, 1926, at Stockton, California, "while in the employ of the defendant Dennis Loran, named herein as one of the firm of Arenbrust...
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The defendant was convicted of the crime of robbery and upon this appeal makes the contention that the evidence was insufficient to show the commission of that crime by him. At the trial Thomas N. Littlewood, charged by the information to have been the victim of the robbery, testified that in the evening of October 2, 1926, he hailed the defendant, who was a taxicab driver and previously unknown t...
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This was an action of debt brought on August 1, 1923, by Janie B. Major, as administratrix of the estate of L. D. Major, deceased, plaintiff below, against A. A. Spring, defendant below, for the recovery of $3,747.91 as monies due the plaintiff under the terms of a contract entered into on May 16, 1919, by and between L. D. Major and A. A. Spring, a copy of which, by exhibit, was made a part of th...
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This appeal presents a question of pleading. In order to have a proper understanding of the matter involved, it is necessary to set forth the record requisite for that purpose. In the trial court the parties appeared as they appear here. Plaintiff's action against the defendant, filed on January 4, 1924, is based on a conditional sales contract, and is for a balance alleged to be due thereunder. T...
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The plaintiffs filed their petition in the district court of Noble county on the 14th day of June, 1924, alleging, in substance, that they are residents of what is known as "Porter addition" to the city of Perry, a municipal corporation, organized under the laws of Oklahoma. That on the 5th day of September, 1923, the city, by its council, passed a resolution of necessity and caused the same to be...
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Herein is presented error for reversal from the district court of Okmulgee county. Cora Adams, formerly Coleman, sued Annetta Hoskins and Bertie De Steiguer. Judgment went for the defendants. The plaintiff's action is for recovery of specific real property, or ejectment. Her petition alleges that she, as owner of the equitable title to half the land described, is entitled to the immediate possessi...
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Sam Zollinger and Belle Zollinger brought their action against the First National Bank of Oklahoma City, seeking to recover $1,087.82, on deposit with the defendant bank in the name of the F. B. Collins Investment Company. Plaintiff had secured a loan of $1,000 from the investment company secured by mortgage, which mortgage had by the investment company been assigned to the American Life Insurance...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of *Page 106 Canadian county on a charge of making a false entry in the records of a bank and was sentenced to serve a term of 5 years in the state penitentiary. The amended information charges that the defendant made a false entry in the individual ledger of the Mustang State Bank, of which he was a cashier...
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This is an original proceeding for a writ of prohibition against the superior court of Pottawatomie county and L.G. Pitman, judge. This cause is presented on the petition with exhibits attached, the response with exhibits, various affidavits, and certified copies of the records. From this record it appears that an information was pending in the county court of Pottawatomie county charging petition...
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Plaintiff in error, Anna Cannard, was tried upon an information charging that she did have in her possession certain intoxicating liquor, to wit, 20 gallons of Choctaw beer, containing- more than one-half of 1 per cent, of alcohol, measured by volume, with the unlawful intent to sell the same. She was found guilty by the jury and her punishment fixed at a fine of $250 and confinement in the count...
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This is an original application by Bert Pope for a writ of habeas corpus to be admitted to bail. This cause was submitted on a verified petition with the return showing that petitioner is held by respondent in the county jail of Jackson county under commitment of a magistrate. Bail was denied by the magistrate, and it is shown that the district judge of the district in which Jackson county is a pa...
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This is a companion case to Ex parte Pope, No. A-6711,37 Okla. Crim. 366, 259 P. 149, just decided. The petitioner here was jointly charged with the petitioner in that case. All the evidence, facts, and circumstances and the conclusion reached in that case are equally applicable here. Writ denied. DOYLE, P.J., concurs. DAVENPORT, J., absent, not participating. *Page 369 ...
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The information in this case charges that in Muskogee county, February 9, 1924, S.E. Washington and Joe Walker did have in their possession 33 gallons of whisky with the unlawful intent to sell the same. On the trial the jury returned separate verdicts against each defendant. The verdict against defendant Washington fixed his punishment at a fine of $100 and confinement in the county jail for 60 d...
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The information in this case charges that in Muskogee county, February 9, 1924, S. E. Washington and Joe Walker did have in their possession 33 gallons of whisky with the unlawful intent to sell the same. On the trial the jury returned separate verdicts against each defendant. The verdict against defendant Washington fixed his punishment at a fine of $100 and confinement in the county jail for 60 ...
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Appellant, George Parnell, was convicted of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and be imprisoned in the county jail for 6 months. To reverse the judgment he appeals and assigns as error certain rulings of the court in admitting incompetent and prejudicial evidence and that the verdict was contrary to law an...
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The appellant was convicted under an information charging that on February 25, 1924, he unlawfully transported intoxicating liquor from some point unknown to Dilday's Cafe, on East Main street, in the city of Holdenville, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment rendered on the verdict he appeals, and he alleges that the verd...
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The plaintiff in error, John Fisher, was convicted on a charge that he did have in his possession a certain still and still worm, and in accordance with the verdict of the jury was sentenced to pay a fine of $300 and serve a term of 90 days in the county jail. To reverse the judgment he appeals. The following statement of the material facts will answer the purpose of our consideration of the appea...
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D. E. Brown was convicted on an information charging that in Caddo county, February 7, 1925, he did unlawfully convey and transport one quart of whisky “from a point on the bank of the Washita river, about three-fourths of a mile southwest of Ft. Cobb, to the automobile of J. B. Rogers, a distance of about 200 feet” and in accordance with the verdict of the jury he was sentenced to pay a fine of ...
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The plaintiff in error was convicted in the county court of Lincoln county on a charge of having possession of mash containing more than one-half of 1 per cent, of alcohol and sentenced to pay a fine of $50 and to serve 30 days in the county jail. The case was tried in August, 1925, and appeal filed December 30, 1'925. No brief has been filed in support of the appeal. Where an appeal is prosecu...
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This is a petition for writ of habeas corpus filed on behalf of T.S. Sneed, confined in the county jail of Seminole county by J.A. Doyle, sheriff, under a commitment, which, omitting formal parts, is as follows: "Whereas, on the 30th day of July, 1927, in the county court in and for the county and state aforesaid, the above-named defendant, T.S. Sneed, was found guilty of crime of unlawful possess...
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The information in this case charges that in Hughes county, March 21, 1924, Claud Heard and Lula Sowards did transport intoxicating liquor. Upon arraignment, the defendant Claud Heard pleaded guilty. The jury returned a verdict finding the appellant guilty and fixed her punishment at a fine of $50 and confinement in the county jail for 30 days. The errors assigned relate to rulings of the court on...
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Appellant, Walter Baker, was tried and convicted on an information charging that in Tulsa county, February 2, 1924, he did have in his possession one quart of whisky with the unlawful intent to sell the same. The jury failed to agree upon the punishment. Motion for new trial was duly filed and denied. Thereupon the court sentenced him to pay a fine of $150 and to be confined in jail for 60 days. T...
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Plaintiff in error, Harry Adams, was convicted on a charge that he did, in Tulsa county, April 27, 1925, sell two pints of whisky to one W. D. Olkenden for the sum of $5.50. The jury failed to agree upon the punishment. Motion for new trial was filed and overruled, and the court sentenced him to be confined in the county jail for 60 days and to pay a fine of $100. The judgment and sentence was re...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary. The record discloses a state of facts about as follows: The defendant is a colored man who lived in the town of Haskell. On the date charged he shot and killed Bill Guillory, also ...
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The petitioner, Olaude H. Castle-bury, filed in this court June 20, 1927, a petition wherein he avers that he is illegally restrained of his liberty by W. B. Walker, sheriff of Pontotoc county, and that his unlawful imprisonment consists in this, to wit, that a warrant of commitment was issued by H. J. Brown, a justice of the peace in and for Ada township, Pontotoc county, upon a preliminary exam...
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The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of receiving deposits in an insolvent bank, with knowledge of its insolvency, and was sentenced to serve a term of 3 1/2 years in the state penitentiary and to pay a fine of $1,000. The charging part of the information is as follows: "* * * The above-named T.N. French, * * *...
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In this proceeding the petitioner, Smith Whitenack, by his attorneys has presented to this court a verified petition wherein he alleges he is unlawfully imprisoned and restrained of his liberty in the county jail of Custer county, by the sheriff of said county; that the cause of said restraint is that he was committed to said county jail by E.J. Lindley, judge of the county court, sitting as an ex...
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The plaintiff in error, hereinafter called defendant, was convicted of robbery with firearms and was sentenced to serve a term of 25 years in the state penitentiary. The charging part of the information is as follows: "That the said H.E. Robards, on the day and year aforesaid, in the county and state aforesaid, then and there being, did then and there knowingly, willfully, wrongfully, unlawfully, ...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county of transporting whisky and each sentenced to pay a fine of $500 and to serve 6 months in the county jail. The record discloses that these defendants with one Olin Valentine transported whisky from Dewey county to Canadian county. When they arrived at El Reno, they ran the car upon the c...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county for the crime of murder and his punishment fixed at death. The record discloses that the defendant is a negro residing at the town of Wetumka. On April 10, 1926, Mitchell Compier, of advanced years, a deputy sheriff, and Weldon Wilson, 22 years old, acting as a night policeman at Wetumka, set...
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Sam Davis was convicted, his punishment fixed at a fine of $50 and confinement in jail for 30 days, and he appeals. One of the errors assigned is that the verdict is not sustained by the evidence. It appears that defendant, Davis, and Raymond Redding were at Lenna P.O., and on their way to defendant's home stopped a quarter of a mile west of Lenna, and in the brush Davis picked up a bottle and gav...
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Appellant, W.C. Maloon, was tried upon an information charging him with the crime of murder, alleged to have been committed in Pittsburg county, October 18, 1924, by shooting one Pete Lout with a pistol. The trial resulted in a conviction of manslaughter in the first degree, the jury were unable to agree upon the punishment. Motion for new trial was duly filed and overruled, and on the 12th day of...
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Appellant, Harry Matheny, was convicted on a charge that he did have the possession of one-half gallon of Choc beer, containing more than one half of 1 per cent. of alcohol with the unlawful intent of selling the same, and in accordance with the verdict of the jury he was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $200. Of the numerous assignments of error we dee...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county for manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary. Only two assignments of error are argued in the brief: The first is that the court erred in permitting the state to impeach two of its own witnesses, Bertha Foutz and George Copel...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county on a charge of selling whisky to minors, and he was sentenced to pay a fine of $100 and to serve one year and one day in the state penitentiary. It is charged in the information that on December 25, 1924, defendant sold two pints of whisky to Rufus Findley and Jack Lebo, they being under the ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of willfully injuring a public building, and was sentenced to serve a term of four years in the state penitentiary. The information was filed in the district court of Carter county April 4, 1925. Defendant was arraigned on April 16, refused to plead, and the court entered his p...
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This action was commenced on January 12, 1926, and was brought by the Lander State Bank, as plaintiff, against the Deputy State Examiner in charge of the Shoshoni State Bank, an insolvent banking corporation. An answer was filed to the petition and a reply to this answer, and the cause came on to be heard before the court without a jury on May 7, 1926. At the beginning of the trial, the defendant ...
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This action was commenced on January 12, 1926, and was brought by the Lander State Bank, as plaintiff, against the Deputy State Examiner in charge of the Shoshoni State Bank, an insolvent banking corporation. An answer was filed to the petition and a reply to this answer, and the cause came on to be heard before the court without a jury on May 7, 1926-, At the beginning of the trial, the defendant...
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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 80 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 81 This is an action brought by W.A. Saul and H.C. Saul, as plaintiffs, against W.S. Hinton and Iona B. Hinton, as ...
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This appeal presents only a question of fact. In January, 1914, an action was instituted by the plaintiff in the city court of Salt Lake City. The title of the action was C. H. Lashbrook, plaintiff, v. L. C. Copenhaver, defendant. Summons was served by one Struthers, a deputy sheriff. The return of the deputy recites that he served the same upon L. C. Copenhaver “by delivering to and leaving wi...
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This is a proceeding to review an award of the Industrial Commission of Utah. The plaintiff Bell Sample Shoe Company is an employer within the terms of the Utah Industrial Act (Comp. Laws 1917, §§ 3061-3165), and defendant Hayes was its employee. The plaintiff Fidelity Guaranty Company carried the insurance. On January 8, 1926, defendant Hayes, by letter addressed to the commission, represented t...
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(dissenting). On the record I think the judgment should be affirmed. The defendant resided in Richfield, Utah, the plaintiff in Burley, Idaho, where the property in question was situated. The court found the defendant was not, but that the plaintiff was, familiar with the real estate in question and the boundary lines thereof; that the plaintiff materially misrepresented such boundary lines to th...
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AFFIRMED. This is a statutory action to recover the reasonable cost of fighting a forest fire, which had its origin upon land owned by the City of Marshfield beyond its corporate limits and which spread to other timber land not owned by it. The action is brought by virtue of Section 8960, Or. L., prior to the amendment thereof in 1925, which so far as material herein provides: "Any fire on any for...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317 In Banc. MOTION TO DISMISS APPEAL ALLOWED. Respondent moves to dismiss the appeal in this cause upon the ground that the transcript was not filed within the time limited by Section 554, Or. L., as amended by Chapter 316, Laws of 1927. That section as amen...
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AFFIRMED. This action is brought by the State of Oregon by virtue of Section 8960, Or. L., as amended by Section 11, Chapter 281, Laws of 1925, to recover the reasonable value of services rendered in extinguishing a forest fire which started upon land owned by the defendant city. It is a companion case to State v. Marshfield,ante, p. 320 (259 P. 201), this day decided adversely to appellant, and w...
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This is an appeal by the State Industrial Accident Commission from a judgment of the Circuit Court directing that the findings and order of the Commission with respect to plaintiff's claim for compensation for personal injuries sustained by him in the course of his employment as a stevedore be reversed, and that the claim be referred back to the Commission with directions to allow and fix plaintif...
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In Banc. Respondent moves to dismiss the appeal and also to strike the bill of exceptions from the record; these will be noticed in their order. It is contended that the notice of appeal fails to sufficiently describe the judgment appealed from, and also to state the name of the court to which the appeal was taken. The notice of appeal is entitled in the proper court, and contains the names of the...
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Ray Caldwell, defendant in error, was the owner, of a certain oil well drilling rig. Fitzgerald Laird, plaintiffs in error, had a contract to drill some wells for the Roxana Petroleum Company and Laird and Caldwell entered into a contract by the terms of which Caldwell was to furnish the drilling rig, Laird was to drill the wells, paying the expenses connected therewith, and the net profits were ...
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This is an original action in this court to review the decision of the State Industrial Commission made on the 8th day of April, 1927, wherein the State Industrial Commission had on the 7th day of March, 1927, made an award granting the petitioner herein compensation for injuries sustained while in the employ of the Kiowa Lumber Company, and thereafter on the 8th day of April, 1927, the State Indu...
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A. T. Ingram, the defendant in error, sued the Doyle-Kidd Dry Goods Company, the plaintiff in error, and recovered judgment in the sum of $2,990. The contract relied upon by the plaintiff was oral and, as stated by him in his evidence, is as follows: "The agreement was that they would place a man in the store and the business would go on in the regular way; that when there would be a shortage in a...
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Plaintiff brought suit in the district court of Garfield county against the defendants for the recovery of certain moneys alleged to have been converted by the defendants to their own use. The cause was tried to the court without the intervention of a jury and there was judgment for the defendants, from which the plaintiff appealed and lodged the case in this court for review. The parties plaintif...
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The Security National Bank of Tulsa brought suit in the district court of Tulsa county against M. W. Cain, pleading an indebtedness on two promissory notes executed by Cain in the principal sum of approximately $4,500. Cain answered admitting the execution of the notes, and by way of cross-petition alleged that prior to the execution of the notes he had entered into a verbal agreement with the Lib...
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This is an appeal from the action of the district court of Adair county. The plaintiff in error was the plaintiff below, and from the action of the trial court in sustaining the demurrer to plaintiff's petition, appeals. The plaintiff in error in due time served and filed its briefs in full compliance with the rules of this court, but the defendants in error have wholly failed to file any briefs, ...
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G. T. Norton, defendant in error, and Earl Turner lived at Ralston in Pawnee county. Turner borrowed $50 from Norton, giving his note therefor, secured by chattel mortgage on a set of plumber's and tinner's too's, which mortgage was placed on record in Pawnee county. Turner removed to Burbank in Osage county, taking the tools with him. It appears that he fitted up a shop in a garage of W. S. Pross...
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This is an action brought by the plaintiff for the possession of lot 15, block 10, in the original town of Bartlesville, and for the cancellation of a deed therefor from plaintiff to defendant, J. D. Simmons, and also for cancellation of a deed made by J. D. Simmons to defendant D. F. Moore The petition in substance alleges: That the plaintiff is the owner of said property, and that on or about th...
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This is the second appeal of this cause. Clara Alberty, a Creek freedman, was the allottee and owner of certain lands on August 21, 1919, when one Deeb Slyman secured a deed purporting to have been executed by Clara Alberty, conveying said lands to him. He placed the deed of record and went into possession of said lands, and some time thereafter he conveyed the same to one Ruth McMurrough. Thereaf...
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This appeal is brought by the plaintiff below, who instituted the action on a promissory note and to foreclose a real estate mortgage given to secure the payment thereof. After the mortgage in question had been executed and filed for record the mortgagors executed an oil and gas lease to one P. E. Smith, who assigned various undivided interests therein to certain individuals and corporations, all ...
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This is an original action brought in this court by T. P. Whitfield to review an award of the State Industrial Commission made and entered on June 1, 1925. The record discloses that petitioner, on the 12th day of April, 1923, while in the employ of Canadian Valley Utilities Company, was injured by a piece of timber which fell across the small of his back; that medical attention was given him by re...
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This is a companion case to cause No. 17510, J. W. Cherry v. Eddie Arnwine, by his next friend, E. Arnwine, in which the opinion has this day been filed; the cases by agreement having been consolidated for trial and tried to the jury on the same evidence in the district court. The other case being by the minor to recover for certain personal injuries and this case being by the parents to recover f...
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This action was commenced by Eddie Arnwine, by his next friend, E. Arnwine, against J. W. Cherry, as defendant, to recover damages for injuries received by the plaintiff in an explosion of dynamite alleged to have been the result of negligence of the defendant. The cause was tried to a jury, and judgment was rendered for the plaintiff in the sum of $450, from which the defendant appeals. For conve...
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This is an appeal from order No. 3240 of the Corporation Commission of the state of Oklahoma. The Hughes Stone Company filed its complaint before the Commission in which it was alleged that the Hughes Stone Company is a producer of rock, crushed and broken, at Garnett, Okla.; that it is shipping broken rock in pieces weighing about 50 pounds each in car lots to Tulsa; that charges are being assess...
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Sometime in the year 1921, the defendant in error T. B. Sublett bought a farm in Garvin county from J. T. Hopkins, subject to an outstanding mortgage in the sum of $2,500 which was held by the Augustanna College and Theological Seminary. Sublett thereafter, being desirous of paying this $2,500 mortgage, which was about due made a new mortgage on said lands in the principal sum of $3,500 to the Con...
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The parties to this action appear in this court in the same relation as in the district court. The plaintiffs brought an action against the defendants for the balance alleged to be due them on account of having furnished to the defendants certain plumbing fixtures together with labor performed in installing the same. One of the defendants, John Semke, had entered into a contract with the defendant...
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For convenience we shall refer to the parties in this appeal as they appeared in the trial court. Plaintiff, F. C. Savage, sued the Norris-Buchanan Construction Company and alleged that the Norris-Buchanan Construction Company was a copartnership composed of H. E. Norris, H. G. Buchanan, and F. C. Savage, the plaintiff, and that said company was organized for the purpose of conducting a general co...
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This action was filed in the district court of Caddo county. June 26, 1917, and plaintiff, Charles Beindorf, *Page 158 prays that a deed, absolute on its face, be declared a mortgage; prays an accounting for rents and profits, and that he be permitted to redeem the lands. Pearl O. Thorpe and Mayme Wyatt, defendants, are the heirs of Hiram T. Dayton, deceased. This is the third time this case has ...
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This cause presents error from the district court of Creek county. K. Wasaff was owner of a 40-acre oil and gas mining lease, located in Creek county. He owned what was known as the working interest, or 7/8ths, conditioned that oil and gas be found in paying quantities. On the 20th day of November, 1922. Was-aff entered into a written contract with L.E. McFarland, whereby McFarland was to drill...
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The parties to this appeal appear in the same position as in the district court. On the 9th day of June, 1926, W. T. Willis et al. secured a judgment against L. W. Wheeler et al. in the district court of Lincoln county, Okla., which judgment among other things recited that: "The plaintiffs therein and certain defendants and cross-petitioners have mechanics' and materialmen's liens." Judgment on sa...
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This action was brought for the recovery of the sum of $4,585.50 and attorneys' fees, and costs. Plaintiffs allege that, on the 6th day of April, 1920, they were indebted to defendant in the sum of $23,500, a balance due on seven promissory notes; that defendant agreed to extend payment of said balance, conditioned that plaintiffs execute five notes, four for $5,000 each and one for $3,500, all be...
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This action was instituted by the defendant in error, as plaintiff, against the plaintiff in error, as defendant. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court. This was an action for damages for the unlawful conversion by the defendant corporation of 2,030 shares of its class "A" stock. The amended petition filed by the plaintiff contains eleven s...
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Plaintiffs in error appeal from an order overruling a motion *Page 4 to set aside the order of confirmation of sale of real estate under foreclosure of mortgage, in which appraisement was waived, and where the order of sale and the order confirming the sale were alleged to be void because had before six months from the date of the order overruling the motion for a new trial. It appears from the r...
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This was originally two separate actions commenced in the justice of the peace court in and for the town of Fairfax; one by defendants in error, T. C. Vandruff and Mat Davis, herein called plaintiffs, against Mark Freeman, defendant, for the sum of $75 damages alleged to have been caused by the negligent burning of plaintiff's stacks of hay; the other by T. C. Vandruff against Mark Freeman for $20...
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The National Bank of Claremore commenced this action against Ulysses S. Jefferies, American Surety Company, and the New Amsterdam Casualty Company on October 7, 1924, by filing its petition in which it alleged that it was a banking corporation organized under the laws of the United States; that the defendant Jefferies was the regularly elected, qualified, and acting county treasurer of Rogers coun...
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This is an action filed in the district court of Adair County by the Kansas City Southern Railway Company against E. H. Wood, county treasurer of Adair county, to recover an alleged illegal payment of taxes made by the plaintiff for the year of 1925. The taxes were paid under protest, and suit brought to recover the same as provided by law. The material parts of the petition which involve the ques...
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This cause is to review the action of the State Industrial Commission refusing the petitioner an award under the Workmen's Compensation Act of the state of Oklahoma. The material facts as shown by the record are, substantially, as follows: On January 3, 1925, Jack Liddell, petitioner, while employed by the Superior Smokeless Coal Mining Company, according to his own testimony, received an injury ...
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A civil action by Robert Terrell against Robert Allan et al. This appeal involves only the rights of Robert Terrell and Robert Allan, who will be hereinafter referred to respectively as plaintiff and defendant, in the order in which they appeared in the trial court. So much of the petition as may be necessary for a decision of this cause is as follows: That on or about July 5, 1921, Harry Gallaher...
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Appellant, John Ivey, was convicted on a charge of unlawful possession of intoxicating liquor and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and serve a term of 6 months in the county jail. To reverse the judgment he appeals. The record shows that when the case was called for trial appellant filed a motion to suppress the evidence because the same was obtained b...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of manslaughter in the second degree, and was sentenced to the state penitentiary for a term of three years. About 8 o'clock in the evening on the date charged *Page 146 in the information, Arnold Peck, with his mother, Mrs. Josie Peck, was driving a Ford coupe south on Hudson ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of assault with intent to kill and was sentenced to serve a term of 2 1/2 years in the state penitentiary. The record discloses that Tom Owen, a deputy sheriff, acting on some information, made a search for violations of the liquor law in some hilly country near the Canadian river. While s...
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The petition for writ of habeas corpus shows that the cause of restraint, as alleged, is by virtue of an executive warrant issued by the Governor of the state of Oklahoma on a requisition made by the Governor of the state of Kansas. It is averred that the purported affidavit is insufficient in law to charge the commission of an offense against the laws of the state of Kansas and is insufficient to...
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John W. Weatherford and Margaret J. Weatherford, his wife, hereinafter called plaintiffs, brought suit against Lulu R. Hall, hereinafter called defendant, to quiet title to certain premises in Flagstaff, Arizona, and to recover possession of the same from the defendant. The case was tried before a jury, which returned a general verdict, finding the issues for defendant, and that she was entitled t...
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In the petition for writ of habeas corpus it is averred that Mike Deal is illegally restrained of his liberty by the sheriff of Washita county. The cause of restraint as alleged is by virtue of an executive warrant issued by the Governor of this state on requisition from the Governor of Tennessee. Upon presentation of the petition, the writ issued, returnable October 28, 1926, at which time respon...
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Respondent is a corporation organized and existing under the laws of the state of Idaho. Its stockholders were restricted to land owners under what was formerly known as the Boise-Payette Reclamation Project, as authorized and constructed by the reclamation department of the United States of America. No capital stock was issued, as such, nor was payment required for its capital stock other than th...
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Plaintiff prayed for relief she desired, and was limited to prayer. Defendant submitted himself to jurisdiction of court on express understanding that only certain relief would be prayed for. Court had no right to force upon parties relief not asked, and which plaintiff agreed she would not ask in consideration of defendant's appearing. Appellant cannot, and does not wish to be absolved from suppo...
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In Banc. This suit is predicated upon the provisions of a will executed by Ann Connertin at Portland, Oregon, on February 27, 1889. There is no controversy as to the facts. By her will, Ann Connertin devised to Mathew Connertin, her husband, for the term of his natural life, all of the real property described in her will. The will further provides: "I direct that, after the death of said husband, ...
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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 46 In Banc. This case involves the interests of parties claiming water rights on the Owyhee River and some of its tributaries. Only three of the contests waged in the adjudication of the water of said streams are involved in this court. These contests will be...
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This is a suit by the superintendent of state banks for the State of Oregon to foreclose a mortgage on real and personal property given to secure the payment of a note executed by defendants Jonas Sparks and Lulu Sparks, his wife, in favor of the First State and Savings Bank of Klamath Falls, for $4,128, dated May 20, 1921, and due November 1, 1921. There are three parcels of land described in 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 379 In Banc. On the eighth day of May, 1926, an indictment was returned and filed in the Circuit Court of the State of Oregon for the County of Wallowa, against the appellant, Robert Wright, Sr., and one J.E. Baxter, in which they were jointly indicted 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 430 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 431 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 410 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 411 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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The plaintiff brought a suit in equity against the defendants as executors of the last will and testament of W.S. McCornick, deceased, for an accounting by the defendants of an alleged copartnership between the plaintiff and W.S. McCornick, deceased. At the conclusion of plaintiff's evidence the defendant moved for a judgment of nonsuit in favor of the defendants and against the plaintiff, upon tw...
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The case is one in equity involving stock transactions between the plaintiff, Tatsuno, and the defendant, Kasai. The case was tried to the court. It found that between January 1, 1918, and June 22, 1923, the plaintiff purchased 1,300 shares of the capital stock of the Tintic Standard Mining Company, which purchases, with plaintiff's money, were made and effected by the defendant for and on behalf ...
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This is an original proceeding in mandamus. The plaintiff, John Walker, is state treasurer of the state of Utah, and the defendant, Dan H. Cannon, is the city recorder and ex officio clerk of the city court of Salt Lake City. The proceeding is to compel the defendant to pay over to the plaintiff certain money now in the custody of defendant, which money plaintiff contends belongs to the state. The...
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This is an appeal by the defendant from a judgment against him in a bastardy proceeding. The jury found 1 that the defendant is the father of an illegitimate child, and the court rendered judgment requiring the defendant to pay $150 during the first year and $100 per year for the period of 17 years, for the support, education, and maintenance of said child. The defendant assails the jud...
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Appellant was convicted and sentenced to pay the death penalty for murder of one Andrew Pashuta. In support of his appeal from the order denying a new trial he urges insufficiency of the evidence to justify conviction for first degree murder, the elements of premeditation and deliberation being, so it is claimed, wholly unproved; erroneous instructions given by the trial court to the jury, and pre...
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This is an appeal by plaintiffs from a judgment of the superior court of Los Angeles County, dismissing the action upon the ground that the complaint does not state facts sufficient to constitute a cause of action. Defendant has not submitted any authorities or made any argument in support of the judgment of dismissal that she obtained in the trial court. The appellants state that the trial court ...
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Respondent claims that an order refusing to set aside judgment and to enter a different judgment on the findings is not appealable. [1] The notice of motion to vacate judgment, an appeal from the ruling on which is the matter now before this *Page 321 court on appeal, is a somewhat lengthy and somewhat complicated notice of motion, and recites that it is made under the provisions of sections 663 ...
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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 275 The plaintiff was awarded judgment for the sum of $2,391.41, with interest thereon at the rate of seven per cent per annum from the date of said judgment, on account of and for professional services alleged to have been performed by plaintiff's assignor a...
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On February 10, 1927, a complaint was filed with the justice of the peace of Temescal township, in the county of Riverside, charging the appellant with having committed "the crime of misdemeanor, to wit, the unlawful manufacture of intoxicating liquor," in the city of Corona, Riverside County, on or about February 9, 1927. The justice *Page 303 of the peace thereupon issued a warrant for appellan...
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This action was commenced by plaintiff for the purpose of obtaining a decree declaring a certain trust deed made by the defendant Smith to the plaintiff to be a mortgage to secure a note executed by the defendants Culley to the plaintiff and foreclosing the same. The defendants filed an answer claiming certain credits in addition to those admitted by the plaintiff in his amended and supplemental c...
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The plaintiff sued to recover compensation alleged to have become due and payable through a real estate transaction. The trial court made findings in favor of the plaintiff and the defendants have appealed under section 953a of the Code of Civil Procedure. The plaintiff pleaded his case in two separate counts. The defendants did not interpose a demurrer but appeared and answered. Some uncontrovert...
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The defendant was charged by an information in two counts with the offense of statutory rape. At the time of the trial the prosecutrix testified that she did not have sexual intercourse with the defendant on the day of June 13, 1926, as alleged in the second count, and for that reason it was dismissed. She did, however, testify that the offense charged in the first count was committed on June 6, 1...
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The plaintiff and appellant commenced an action in ejectment alleging ownership in lot 9, block 20, in the city of Oxnard and seeks to oust the defendants from possession thereof. Defendants, by answer, denied plaintiff's ownership and by cross-complaint defendant Immel alleged that he and plaintiff are father and daughter; that confidential relations existed between them; that in November, 1914, ...
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Certiorari to review an order setting aside and vacating an interlocutory decree of divorce. So much of the facts as are necessary for a discussion of the case show in substance that petitioner herein filed an action for divorce in San Mateo County against Myron L. McKeever, charging him with cruelty and praying that the community property be awarded to her. Defendant was personally served with su...
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This is an appeal from a judgment entered upon an order sustaining a demurrer to a fourth amended complaint, without leave to amend. The action was brought in California against a father for injuries resulting from an alleged tort of his minor child, which occurred at the residence of the father in the territory of Hawaii. The complaint was filed April 26, 1924, and alleges that plaintiff "is, and...
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The Chelan Electric Company, a public service corporation, commenced a number of actions in the superior court of Chelan county to obtain the right to overflow the lands of various owners to an elevation of eleven hundred feet above mean sea level, for the purpose of creating a reservoir in Lake Chelan for the storage of water to be used in the manufacture of electric energy for public use. By ord...
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On June 11, 1924, one Hansen, one Anderson and the appellant Ohm were jointly tried before a jury and convicted of the crime of maintaining a place for the unlawful sale of intoxicating liquors. Following the verdict, the two first named duly appeared before the court, at the time appointed by the court, and were sentenced. The appellant failed to appear, and his bail, in the amount of $1,500 in ...
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This is a companion case to State ex rel. Woodruff v.Superior Court, ante, p. 129, 259 P. 379. All of the evidence introduced in the above cases was by the court considered in this case. The findings of fact, except in the necessary property descriptions, were identical. [1] The only additional question in this case is, does the acceptance by petitioners of the Federal Power Commission license aff...
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This action was instituted by the appellant, Myrtle M. Chalenor, on three insurance policies which had been issued by the respondent companies, covering the life of Richard Chalenor, her son. She is the beneficiary named in each of the policies, and the cases were consolidated for trial. The controlling question is, was death the result of accident or suicide. The trial court instructed that this ...
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Tbe respondent, Mae Lockbart, and tbe appellant, W. T. Lockbart, were formerly busband and wife. Tbey were divorced by a decree of tbe superior court of King county, entered September 1, 1920. Tbe appellant is a dentist by profession, and from a time some years prior to tbe entry of tbe decree of divorce, bad conducted, and now conducts, a dental office in tbe city of Seattle. At tbe time of tbe ...
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Appellant brought an action for separate maintenance. Respondent answered and cross-complained, asking for a divorce. Upon trial, the court denied the wife’s plea for separate maintenance; granted the husband a divorce, and divided the property of the parties. The wife thereupon appealed. She urges error in denying her plea for separate maintenance and in the granting of the divorce. Appellant’...
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On September 29, 1924, the appellant Gouin was the owner of certain real property situated in the city of Seattle, on which there was a building used as a dwelling house. On that day he applied to the respondent, Northwestern National Insurance Company, for insurance on the house, and a policy of insurance was issued to him, insuring the building against damage or loss by fire in the sum of $4,50...
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The first of these consolidated causes was commenced, in the superior court for Spokane county, by the Brotherhood State Bank against William Chapman and the sheriff of that county, seeking the transfer to that court of their attempted foreclosure, by summary notice and sale, of a chattel mortgage purporting to have been executed to Chapman by O.V. Newton upon property claimed by him as his indivi...
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This appeal is a consolidation of four actions brought by separate plaintiffs against the defendant stage company for damages sustained in May, 1926. From a judgment entered in favor of each plaintiff, the defendant has appealed. On the afternoon of May 4, 1926, at about 2:00 p.m., the several respondents were part of a funeral procession going from Spokane to Colfax, where interment of the deceas...
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This is an appeal from a conviction of murder in the second degree. The appellant, with one Milton Chaousis and some others, were gambling on the afternoon of January 15, 1926. Appellant accused Chaousis of cheating and a fight ensued. Later, when leaving the room, appellant shot Chaousis four times, killing him. Appellant was charged with murder in the first degree, and upon trial the jury return...
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Albert Topper, hereinafter called plaintiff, filed suit against J.A. Reid and Mary E. Reid, hereinafter called defendants. The substantial allegations of the complaint, so far as necessary for the determination of this case, read as follows: "That . . . the defendants and each of them were the owners of and in possession of certain ranches and cattle ranges and a large number of range stock. *Page...
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Earl William Stark, hereinafter called appellee, brought suit in the superior court of Maricopa county against Agnes Mary Stark, hereinafter called appellant, for a dissolution of the bonds of matrimony theretofore existing between the parties. The action was based on the alleged desertion of appellee by appellant. The latter answered, denying the desertion, and the matter was heard before the cou...
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Marie E. Hall, hereinafter called plaintiff, brought suit against Herbert S. Hall, hereinafter called defendant, on a judgment for $3,100, which she had recovered against him in the state of Missouri. The complaint set up the Missouri judgment inhaec verba, alleged that five hundred dollars only had been paid thereon, and asked for a judgment for two thousand six hundred dollars. Defendant answere...
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The state engineer entered into a contract with one A.A. Ray, whereby the latter undertook to perform certain work on the Phoenix-Wickenburg highway. As a condition precedent thereto, Ray was required to, and did execute a bond to the state of Arizona, upon which the National Surety Company, hereinafter called appellant, was surety. Ray completed his contract in accordance with its terms, and drew...
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In November, 1924, the plaintiff, for another, and the defendant entered into a written contract, by the terms of which the defendant sold to the plaintiff certain described real estate in Salt Lake City for the sum of $20,000 upon a down payment and the balance of the purchase price to be paid in installments. By the contract the defendant was required to give a warranty deed and place it in escr...
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This is an original proceeding for a writ of prohibition directed to the Honorable Thomas H. Burton, as judge of the district court of Beaver county, Utah, to restrain that court from proceeding, under the provisions of Laws Utah 1919, c. 67, with a general determination of the rights to the use of the waters in what is called the Beaver river system under an order made and entered in an action pe...
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There was not substantial compliance. Contract was *Page 341 for about 650 ewes, of which 400 were to be yearlings, balance two-year old, up, unshorn, at $12 per head for sound, and $7 for broken mouths, buyer's option. Those tendered were 293 yearlings, worth not over $13; 33 old sound-mouth ewes, $9; 268 old broken-mouth ewes, $7.50; 15 yearling weathers, 24 lambs and 16 bucks. Where contract t...
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Complaint does not state cause of action against Devincenzi. As pleaded, his promise is collateral to answer for debt of another within meaning of subdivision 2, Rev. Laws, 1075. He was not member of partnership and had no connection with primary obligation of Sinai. Statute makes no distinction between surety and guarantor. No Nevada case can be found holding contract *Page 347 of surety is not ...
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This is an action to recover commissions on renewal premiums under an agency contract into which plaintiff and defendant insurance company entered on March 24, 1917. The contract continued in effect until June 8, 1921, when it was terminated by the defendant. The controversy arose over the payment .of commission upon renewal premiums which accrued and were paid within four years after the termi...
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In Banc. The rules of the Circuit Court for Multnomah County provide: "Rule 36. Any party to a civil or criminal action may within thirty days after the entry of final judgment tender a bill of exceptions. *Page 657 "Rule 37. It shall not be necessary to enter an order in the Journal granting time in which to tender a bill of exceptions unless the Court by special order extends or shortens the ti...
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At the time the raid was made the defendants Robertson and Johnson were found asleep in the dwelling of defendants Stassen, who are husband and wife. The raid was made by federal and state prohibition officers, the sheriff of Clackamas County and two of his deputies. The defendant Jack Martin was found at the still while the same was in operation. There was present in the hog-house, where the sti...
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There is but one question raised on this appeal and that is: There is no evidence to justify the verdict. We cannot agree with this contention. In brief, here is an outline of the state’s evidence: Holloman lives on a side road in a canyon about 300 yards or so from the main Mt. Hood road. There is an old sawdust pile about 250 yards from his home where a mill had formerly been located. About t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 539 The defendant was indicted in the Circuit Court of Klamath County for the crime of larceny by bailee. The charging part of the indictment is as follows: "The said K.Q. Ayer on or about the 16th day of November, A.D. 1926, in the said county of Klamath and...
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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 426 AFFIRMED. Plaintiff and others, as employees of the defendant Woodruff, performed labor in repairing an airplane, which had been delivered to their said employer by its owners, the defendants Spaniol and Thomas, under a contract by the terms of which Wood...
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The appellant, S. B. McFarland, filed a petition in the superior court in and for the county of Los Angeles for the probate of a document which he alleged to be the last will and testament of Robert S. Parker, deceased. The petition alleged that the value of the estate was approximately $3,900; that testator left no heirs at law; that at the time the document in question was executed testator was...
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OPINION OF THE COURT [1] A motion to dismiss the appeal in this case has been filed, based upon various grounds, only one of which need be noticed. Neither a supersedeas bond nor a cost bond has been filed, although the time within which the same was required by chapter 43, Laws of 1917, has long since expired. Under our previous decisions, this is fatal to the appeal. Se...
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This action was instituted to recover the purchase price of eight oriental rugs purchased by plaintiff of defendant. The ground upon which said recovery is sought is that defendant falsely and fraudulently represented the quality and character of said rugs at the time of their purchase. The case was tried by the court without a jury, and judgment rendered in favor of the plaintiff for the full amo...
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This is an appeal from an order granting motion of respondents for nonsuit and denying the petition of appellant for admission to probate of an alleged codicil to the will of Mathew Kelleher, deceased. *Page 125 Decedent, on February 9, 1914, while visiting in Ireland, made a will in which he named respondent Richard T. Pomeroy as one of the executors and Daniel Kelleher of Boston, his cousin, as...
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THE COURT. This is an appeal from a decree of partial distribution entered by the superior court in and for the county of San Diego. The decedent, Anna Edwards, died intestate, leaving as her estate property which she had inherited from her deceased husband. From the record it appears that the decedent left surviving her certain brothers and sisters, and also certain children of a deceased brother...
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This is an appeal from a judgment of conviction of the defendant upon the charge of murder and from the order denying the defendant a new trial. The homicide, if committed as charged in the information, occurred on the twenty-seventh day of January, 1926, in the city of Sacramento, where at the time the defendant resided with his wife and their three minor children the eldest of which was a girl, ...
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The purpose of this action is to settle and determine the respective claims of plaintiff and defendant to the waters of Fall River in Shasta County. By its second amended and supplemental complaint plaintiff claims a right to the first continuous flow of said stream as against defendant to the extent of 240 cubic feet per second, basing said claim upon the provisions of two permits issued by the d...
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Application for peremptory writ of mandate, directing respondent court and the Honorable Judge thereof to proceed with the hearing and determination of a certain cause. The petition is filed on behalf of Berneita Mechler, a minor, by Nora Mechler, her guardian ad litem, and it recites in substance that on or about the thirtieth day of March, 1927, the said minor, through her guardian, instituted a...
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The plaintiff commenced an action against the defendant to obtain a decree for permanent support and maintenance. She pleaded in the first cause of action the extreme cruelty of the defendant. In the second cause of action she pleaded his desertion of her on the fifteenth day of May, 1922. Thereupon she prayed for a division of the community property and for $150 per month for her permanent mainte...
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This is an action for damages for personal injuries sustained by the plaintiff, caused by the negligent operation of a truck driven by the defendant Kadowaki. The truck ran into a large iron post standing embedded in the sidewalk at a street corner in San Francisco. The iron post broke off and fell upon the plaintiff, injuring him. The defendant operating the truck at the time was an apprentice me...
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The defendant was charged by an information containing two counts with the commission of two felonies. In the first count it was alleged that he illegally gave and furnished to one Madge Serber a preparation of cocaine on September 22, 1926, and the second count charged that he illegally sold a preparation of morphine to the same person on September 26, 1926. At the trial he was convicted upon bot...
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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 362 This is an action brought to foreclose a chattel mortgage dated October 31, 1923, executed by defendants to plaintiff, and covering certain cattle, horses, and farming implements. The chattel mortgage was given to secure the payment of a promissory note o...
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The defendant was charged by information with the offense of having in his possession intoxicating liquor containing alcohol in excess of one-half of one per cent by volume, for beverage purposes. The information further charged a prior conviction of the offense of possession *Page 415 on February 19, 1926, and a second prior conviction of the same offense on October 30, 1926. The jury returned a...
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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 334 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 335 This is an action for damages in the total sum of $31,655.56 for personal injuries alleged to have been sustai...
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This is an action to quiet title to certain real property in Inyo County, together with *Page 400 certain shares of the capital stock of Bishop Creek Ditch Company, a corporation, and the waters for irrigation of said land represented by said shares and furnished to said land by said corporation. Judgment passed for plaintiffs and the defendant appeals from the judgment and the order denying the ...
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The defendant was charged in an information consisting of three counts with the offenses denounced by section 337a of the Penal Code, in subdivisions 2, 3, and 4 thereof, the first count accusing him in effect of *Page 408 keeping a room with papers and paraphernalia for the purpose of recording wagers laid on horse-races, the second of holding or forwarding money wagered on horse-races, and 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 390 Appellant was the owner of and operated a steam laundry in the city of Los Angeles and had obtained a permit for and contemplated erecting and operating another laundry in the same community. The respondents, residents of that vicinity, sued to obtain an ...
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The information herein, charging the defendants with the crime of robbery, was filed October 21, 1926. On their arraignment two days later the defendants appeared without counsel and, after being duly informed of their rights, stated that they did not desire counsel to represent them. Tossey, who will be referred to as the defendant, stated that his true name is James Trautman. They both entered p...
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Petitioners are plaintiffs in an action for damages pending in the superior court of the state of California, in and for the city and county of San Francisco, and sought to take the deposition before a notary public of one of the defendants named in said action, who refused to answer the questions propounded to him. He was thereupon cited to appear before respondent as judge of said superior cour...
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Petitioner applies for a writ of review for the purpose of having annulled a judgment of the respondent Superior Court rendered on the merits, after trial de novo, in an action brought before said Superior Court on an appeal from the justice's court taken on questions of law and fact. Petitioner's main contention is that there was no trial of the facts in the justice's court, and that therefore th...
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The defendant was convicted of the crime of lewd and lascivious conduct with a child, his daughter, then of the age of nine years. This appeal is from the judgment and the order denying a new trial. At the trial the child positively denied that the defendant committed any of the acts charged. On the ground that he was taken by surprise by such denial, the district attorney was permitted to prov...
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The plaintiff commenced an action against the defendants to recover a judgment for damages alleged to have been suffered by reason of being struck by an automobile truck owned by the defendant Lumber Company and operated by the defendant Peter Leonard. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the defendants and...
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Plaintiff had judgment in the sum of $9,284.50 upon an action instituted to recover said sum on two certain policies of life insurance alleged to have been issued by the defendant, insuring plaintiff's husband, William Wolf Bloom. The policies in question were each for the sum of $5,000 and judgment was awarded for the amount *Page 421 of each policy, less the premium due thereon in the sum of $3...
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The defendant was convicted by the verdict of the jury with the offense of embezzlement and appeals from the judgment pronounced upon the verdict and an order denying his motion for a new trial. The facts essential to an understanding of this appeal are as follows: C.B. James Son were the owners and operators of a garage in San Fernando and as a part of that business sold new and used automobiles...
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The instruction complained of singles out a particular piece of evidence and comments upon it and advises the jury in relation to how and under what circumstances it may be considered. There was only this one piece of evidence in the case to which such an instruction as this could possibly apply and to which therefore necessarily it would apply. The court just as effectively singled out this affid...
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THE plaintiff in error was convicted upon the charge of owning, operating and having in possession a still, used, designed and intended for the manufacture of intoxicating liquors. He brings error and moves for supersedeas. No instructions were requested. The court instructed the jury orally without objection or exception. It is now claimed that the instructions were not sufficient as to the issue...
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THIS is a writ of error to review a judgment of the Denver district court which set aside findings of the Industrial Commission, and its award of compensation based thereon, for a hernia alleged to have been sustained by the employee Huber in the course of his employment by Hover Company, wholesale druggists. In the course of the proceedings before the commission there were several findings, orig...
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BONHAM sued Tipton for assault; there was a verdict for defendant and Bonham brings error. The defendant testified that he committed the assault, and there was neither plea nor evidence of justification or excuse; the court should, therefore, have directed a verdict for plaintiff, and left to the jury the question of damages only. It is objected that neither the motion for new trial nor the assign...
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STRONG et al., as surviving directors and trustees of the Strong Mercantile Company, a corporation, had judgment against Lehl in an action on promissory notes. He brings error and moves for a supersedeas. Both parties request a final decision on this motion. The judgment must be affirmed. The action was brought in the name of the Strong Mercantile Company, a corporation. The defendant answered, de...
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ON trial to the court Bosick had judgment against Adamson in an action on a promissory note. The findings were general for plaintiff. The defense was that the note was not due. The defendant testified that at its maturity, July 1, 1925, it was extended one year; the plaintiff that it was extended six months. The action was brought December 9, 1925, within the six months; it is, then, immaterial wh...
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deliveréd the opinion of the court. Ruane had judgment, on trial to the court, against the Grand River Ditch Company, for damages for injury to his crops by seepage. - He also had an injunction against further operation of the defendant’s ditch so as to damage plaintiff. Defendant brings error. The principal point made for reversal is that the evidence is insufficient because no negligence wa...
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THIS action was mandamus to compel the Industrial Commission to enforce an award in favor of Coursey against the Victor American Fuel Company. A demurrer to the alternative writ was sustained and the cause dismissed. The petitioner brings error. The alternative writ stated that an award had been made; that the employer, a self-insurer, refuses to comply; yet the commission refused to enforce it. I...
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GENTINA Moschetti, as administratrix of the estate of her deceased husband, Rocco Moschetti, sold, under an order of the county court, of date January 13, 1925, a leasehold estate in the Brewster coal mine, with certain *Page 347 equipment, and realized say $3,300 net therefor. March 6th, following, the Santarelli brothers, defendants in error, filed their claim in the county court of Fremont cou...
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THE Industrial Commission awarded plaintiff in error one-half compensation for the death of her son Dominic, the district court affirmed the award and she brings error. She claims full compensation because she claims she was wholly dependent on him for support. Whether she was so is the only question in the case. Dominic was 26 and another son, Antonio, who also lived with her, was 24 years old. T...
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ON July 27, 1918, Carrie F. Becker, the owner of certain land in Logan county, died, leaving, as her heirs at law, her husband, Jacob C. Becker, and six minor children, among them the plaintiff in error. On February 13, 1919, the county court of Logan county appointed said Jacob C. Becker guardian of the estate of the minors. Upon application of the guardian of the estate, the county court entered...
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This is a proceeding in error instituted by plaintiff in error, Mike Perko, hereinafter referred to as the defendant, to review a judgment for $282.00 with interest and costs, obtained against him in the District Court of Sweetwater county by the defendant in error, Rock Springs Commercial Company, hereinafter designated as the plaintiff. Plaintiff's petition is in the usual form upon an account f...
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Robert Mee, plaintiff below, hereinafter so designated, on July 13, 1923, filed this action against the First National Bank of Kiowa, defendant below, and hereinafter designated as the defendant bank, for the recovery of $505, which plaintiff alleged he had paid to the defendant bank, as the purchase price of a Liberty Bond. In his petition plaintiff alleged that he was a dealer in government secu...
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Maryland Casualty Company originally filed this action in the district court of Jefferson county, Okla., to recover of and from W. J. Ballard the sum of $1,370 for moneys and sums paid out and expended by it for attorneys' fees, expenses, and a certain judgment recovered against it as surety on the official bonds of the defendant, W. J. Ballard, who was sheriff of Jefferson county, Okla. The first...
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The parties will be herein referred to as they appeared in the trial court. W. C. Norris sold to George T. Hare an automobile for the purchase price of $2,200, taking in payment therefor a used automobile at an agreed price of $750, the balance to be paid in installments, such installments evidenced by promissory notes. Hare, having become delinquent in his installments, voluntarily surrendered po...
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This was an action in the district court of Muskogee county by the county treasurer of said county, upon the relation of the county attorney thereof, against C. H. and H. B. Nelson, for a decree of sale of a certain tract of real estate situated in the city of Muskogee and owned by said C. H. Nelson and fully described in the judgment roll herein; the object of the suit being to satisfy certain de...
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Arch Hensley was charged with the crime of burglary in the district court of Stephens county and gave bond for his appearance for trial, which bond was signed by himself as principal and Bob Mooney and R. E. Begley as sureties. Failing to appear when the case was called for trial, said bond was, on the first day of May, 1924, forfeited and the order and judgment of forfeiture entered upon the reco...
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The parties will be referred to herein as they appeared in the trial court. The plaintiff in error will be referred to as the defendant, and defendant in error as plaintiff. This controversy arises out of the sale of certain oil properties in the county of Menifee, state of Kentucky. The plaintiff purchased, through the defendant and one W. L. Kendall, one-third interest in two different oil produ...
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This appeal is prosecuted *Page 34 from an order of the district court of Rogers county, confirming a sale of real estate over objections of the plaintiff in error, defendant below. The original action, in which the order of sale was made, was to foreclose a second mortgage executed by plaintiff in error, defendant below, covering 300 acres of land. A judgment was rendered in the case for the app...
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The parties appear in this court in the same relation as in the district court. On February 28, 1925, M. E. Templeton brought an action against the defendants in which the plaintiff claimed to be the owner of an undivided interest in and to certain lands located in Seminole county, Okla. The plaintiff in his first cause of action asked that he be decreed to have said interest decreed him, as well ...
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The Liberty National Bank of Pawhuska, as plaintiff, brought suit against J. A. Neylon, as defendant, to recover the sum of $471.80, with interest and attorney fees, upon a promissory note. The defendant filed answer in which he admitted the execution of the note, but alleged that he was not liable thereon, because *Page 189 it was executed without consideration and for the accommodation of the p...
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The plaintiff in error was defendant in the trial court and the defendant in error was plaintiff. The parties will be referred to herein as they appear in the trial court. On the 24th day of November, 1924, the plaintiff, Harbour-Longmire Company, commenced an action against E. D. Reid et al. and R. W. Randol in the district court of Carter county. The plaintiff sought to foreclose a chattel mortg...
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Roy Williams, plaintiff in error, claimant, on May 9, 1922, while in the employment of Black-Sivalls Bryson, respondents, received an injury by a heavy box of bolts falling against his chest or side, and claim was filed with the Industrial Commission, and award was made and allowed and compensation paid claimant from the date of his injury up to February 28, 1923, a receipt being filed on March 3...
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This is a companion case to No. 17475, the State of Oklahoma on relation of the Commissioners of the Land Office of said State v. Leo C. Wilson et al., in which the opinion of this court, affirming the judgment of the trial court, was filed on the 5th day of April, 1927, 124 Okla. 236, 254 P. 968. The parties have filed a stipulation that the questions of law and fact involved in this cause and th...
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The facts and law applicable thereto in this cause being substantially the same as in cause No. 17625, Langley v. Hamilton, 127 Okla. 35, 259 P. 575, wherein an opinion has this day been rendered, the opinion and syllabus therein rendered are adopted as the syllabus and opinion in this case, and the judgment of the trial court should be affirmed. TEEHEE, HERR, HALL, and REID, Commissioners, concur...
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On February 3, 1926, plaintiffs secured a temporary injunction against the defendants upon a petition wherein plaintiffs in substance alleged that they were motor carriers for hire engaged in transporting commodities between the cities of Oklahoma City and Shawnee over State Highway No. 3, for which purpose they had secured a proper certificate of public convenience and necessity from the State Co...
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The plaintiffs in error, M. W. Perry and M. L. Perry, commenced this action against the defendant in error, George Myers, on the 11th day of May, 1921, to recover the sum of $1,465.69, with interest, for which amount it was alleged the defendant was indebted to the plaintiffs for goods, wares, and merchandise which they sold and delivered to said defendant between December 6, 1918, and April 21, 1...
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This action originated in the justice of the peace court in Pittsburg county, being one of forcible entry and detainer brought by Milby Dow Coal Mining Company, as plaintiff, to recover from defendant, Charles Hughes, as is described in plaintiff's complaint, "* * * possession of the following described premises, to wit: Milby Dow Coal Mining Company, House No. 145 in the town of Dow (Dow Camp...
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Plaintiff in error will be referred to as plaintiff and the defendants in error as defendants, as the parties appeared in the trial court. On the 1st day of March, 1926, in a case then pending in the district court of Alfalfa county, Okla., plaintiff obtained judgment against the defendant Frank A. Salter in the sum of $730.30. At the time this judgment was rendered, defendant Frank A. Salter was ...
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This cause presents error from the district court of Okmulgee county. The plaintiff, T. W. McNear Securities Company, sued defendant Baker upon a promissory note in the principal sum of $831, bearing interest at 8 per cent. per annum, payable semi-annually. It alleged default in payment of the said note, and sought to have the said sum declared a vendor's lien upon certain property in the city of ...
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Parties herein will be referred to as they appeared in the trial court. On June 16, 1924, in the district court of Okmulgee county, the First National Bank of Drumright, as plaintiff, after personal service of summons upon defendant, obtained a default judgment against Orville Knight, defendant, for the sum of $2 525 39 due on promissory note, and for foreclosure of a chattel mortgage. On July 22,...
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This is an action brought against the defendant and 51 others for the foreclosure of alleged tax liens on 27 separate tracts or lots of land in Osage county. The action is brought under the provisions of chapter 12, Session Laws 1925. The petition in part is as follows: "Comes now the above-named plaintiff, and for 16 causes of action against each of the defendants named in the caption hereof, sta...
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The facts and law applicable thereto in this cause being substantially the same as in cause No. 17625, Langley v. Hamilton, 127 Okla. 35, 259 P. 575, wherein an opinion has this day been rendered, the opinion and syllabus therein rendered are adopted as the syllabus and opinion in this case, and the judgment of the trial court should be affirmed. TEEHEE, HERR, HALL, and REID, Commissioners, concur...
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On July 20, 1925, the plaintiff in error herein filed a petition in the county court of Caddo county to probate, as a domiciliary will, the will of her deceased husband, J. M. Youngblood. She did not have the will, but gave notice to produce. The defendants in error herein, the children of J. M. Youngblood by a former marriage, contested the probate of the will in Caddo county as a domiciliary wil...
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The defendants in error have filed a motion to dismiss the appeal herein for the reason that no final order or judgment is set out in the case-made. The plaintiff in error commenced this action against the defendants in error in the district court of Garvin county to recover for services performed by the plaintiff under a written contract. Defendants filed demurrer to the plaintiff's petition, whi...
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The facts and law applicable thereto in this cause being substantially the same as in cause No. 17625, Langley v. Hamilton, 127 Okla. 35, 259 P. 575, wherein an opinion has this day been rendered, the opinion and syllabus therein rendered are adopted as the syllabus and opinion in this case, and the judgment of the trial court should be affirmed. TEEHEE, HERR, HALL, and REID, Commissioners, concur...
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C. J. Harrington brought suit in a justice court of Woods county, Okla., against Great American Insurance Company, a corporation, to recover upon an insurance policy for an alleged loss to his crops by hail. Plaintiff recovered judgment and an appeal was taken by defendant to the district court of Woods county, where a trial was had before a jury. Again the plaintiff recovered and the insurance co...
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The Exchange Trust Company was plaintiff below, is plaintiff in error here, and will hereinafter be referred to as the Exchange. The Oklahoma State Bank was defendant and cross-petitioner below, is defendant in error here, and will hereinafter be referred to as the Bank. This is an appeal by the Exchange from an order of the district court, vacating an order made at a prior term appointing a recei...
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This case is an outgrowth or side issue of the case of Burnham v. Edwards, 125 Okla. 272, 257 P. 788. In that case Burnham was sued on a contract of suretyship growing out of his signing a supersedeas bond. He was the losing party in the trial court; he gave notice of an appeal to this court and had an order entered staying execution and superseding the judgment, pending the filing of a supersedea...
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Petition for writ of habeas corpus filed in this court April 28, 1927, shows: That petitioner, undersheriff of Cleveland county, received from Geo. P. Church, justice of the peace of Moore, in said county, a warrant for the arrest of Theo Torgerson, on a charge of driving on the public highway at a greater speed than 35 miles an hour. On March 22, 1927, he arrested said Torgerson at Ardmore. On th...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail. There is evidence, although it is not overwhelming, which, under the holding of this court, that the weight and credibility of the evidence is for the jury, is sufficient to...
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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 liquor nuisance, and was sentenced to pay a fine of $500 and to be confined in the county jail for a term of six months. The record discloses that in 1924 defendant had a filling station about nine miles southwest of Oklahoma City. On the date charged, certain fed...
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Plaintiff in error, Vol Cooksey, was tried and convicted for the offense of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and be confined in the county jail for 6 months. From the judgment an appeal was perfected by filing in this court petition in error with case-made on February 20, 1927. Counsel for the state have ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Beaver county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $150 and to serve 40 days in the county jail. The evidence on the part of the state discloses that at the time charged the defendant, who operated a service car out of the town of Liberal,...
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Walker Foreman was convicted on an information charging the "possession of 100 gallons of a compound mixture, mash, wort and wash known as whisky beer, fit for distillation and for the manufacture of whisky," and in accordance with the verdict of the jury was on February 13, 1926, sentenced to pay a fine of $100 and confinement in the county jail for 30 days. From the judgment an appeal was taken ...
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On application for writ of mandamus it appears from the application and the return to the rule issued to show cause why the writ should not issue that on September 13, 1924, an information was filed in the district court of Rogers county, charging jointly C.E. Young, A.P. Davis, E.M. Jones and M.O. Conner with having killed and murdered one Homer McMillan, in said county, on the 1st day of October...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of manslaughter in the first degree and was sentenced to serve a term of 7 1/2 years in the state penitentiary. A brief statement of the facts appearing in evidence is about as follows: Defendant was an oil field worker residing at the town of Stroud; he had formerly been convicted of a felo...
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Plaintiff brought this action to secure the cancellation of a $2,500 note and a chattel mortgage given to secure payment of the same, executed and delivered by him to the defendant on March 19, 1923. The material facts, as shown by the pleadings and the testimony introduced at the trial, are substantially as follows: By an arrangement entered into about May 5, 1919, plaintiff agreed to sell to the...
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THE court sustained a general demurrer to the complaint of the People ex rel. Klug, they stood by their complaint and bring error. The action was for treble damages, under the statute, on account of a levy of execution by Corder, sheriff of *Page 319 Weld county, on exempt property, i. e., a five-passenger Buick touring car, alleged in the complaint to be a farm wagon and to be in use to carry on...
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OPINION OF THE COURT This is an original proceeding upon the accusation of the Attorney General, charging J. E. Fleming, formerly a practicing attorney at Santa Rosa, with professional misconduct, and, specifically, with failure to account for moneys of certain clients coming into his hands as an attorney. By his answer respondent denied the several charges of failure to account, and alleged ...
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OPINION OF THE COURT Appellee (plaintiff) recovered a money judgment against appellant (defendant) May 26, 1918, in the district court of Dona Ana county. It not having been satisfied, appellee commenced suit April 17, 1923, upon that judgment in the same court. Appellant filed a counterclaim for services performed for appellee before recovery of the original judgment, bu...
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OPINION OF THE COURT The only error assigned is the refusal of the court to grant appellant's motion for change of venue. The motion itself was purely formal, and was based upon the following affidavit containing the grounds of the motion and specific facts: "Comes now William Nabors, who, being first duly sworn, upon his oath deposes and says: That he is the defendant in...
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OPINION OF THE COURT Plaintiff, suing in replevin for the recovery of an automobile, alleged in her complaint that, being the owner of it, she made a written contract in September, 1923, to sell it to one Shepard upon payments, retaining the title in herself until the payments should have been made; that in April, 1924, Shepard sold and delivered the car to defendant; and...
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OPINION OF THE COURT October 1, 1921, appellee (plaintiff) leased certain premises to appellants to be used for a confectionery store for a term of two years, reserving rent in the sum of $7,800 payable monthly in advance, $300 monthly for the first year, and $350 monthly for the second year. The lessees covenanted that they had received the premises in good condition, an...
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OPINION OF THE COURT [1] Chapter 20, Laws of 1927, imposes an excise gasoline tax, to be paid into the state treasury [1] 36 Cyc p. 989 n. 98 New. [2] 35 Cyc p. 827 n. 32. *Page 486 and covered into the state road fund, "to be used for maintenance, construction and improvement of state highways and to meet the provisions of the Federal Aid Road Law." Section 2. In antici...
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OPINION OF THE COURT Appellant, by its complaint alleged that it was the owner of certain described lands which had been patented to it by the United States in 1909; that appellees were, respectively, United States forester, forest supervisor of Manzano national forest, and forest ranger of said forest; and that appellees, "in their respective capacities hereinbefore stat...
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Lower court having found relation of landlord and tenant and privity of contract did not exist could enter *Page 353 no judgment whatsoever. It specifically found defendants were entitled to use of water under agreement between Nenzel and Nenzel Crown Point Mining Co., rights thereunder having been assigned to defendant, and payment made. To be guilty of unlawful detainer, one must be tenant. Rev...
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On the 29th day of March, 1927, pursuant to resolution and notice theretofore given by the board of county commissioners of Lincoln county, an election was held at which there were 7,748 votes cast in favor of, and 1,339 votes against the issuance of $1,200,000 negotiable coupon bonds bearing interest at the rate of 4 3/4 per cent. per annum, payable semi-annually and maturing in equal installment...
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This is an original action filed in this court by petitioner, H. M. Davison, to review an award of the State Industrial Commission made and entered on the 11th day of May, 1926, wherein petitioner charged that while in the employ of respondent, Wilson Company, he was injured, claiming that while pushing a truck on the *Page 53 13th day of February, 1926, his foot slipped and he fell, sustaining ...
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This is an original action filed in this court by petitioner, H. M. Davison, to review an award of the State Industrial Commission made and entered on the 11th day of May, 1926. Petitioner, in a complaint filed before the State Industrial Commission, charged that during the month of January, 1926, while he was in the employ of respondent, he received and suffered an injury to his eyes, by reason o...
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This appeal is to reverse the judgment of the trial court, wherein the mayor and city council of the city of Shawnee were enjoined from entering into a contract with H. L. Canady Company for putting in a sewer system in what is designated as sewer district 105 in the city of Shawnee. The material facts involved are that the engineers, E. T. Archer Company, who made the estimate and computed the ...
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This action was commenced in the district court of Osage county by K. L. Wickett to collect from Elmer J. Black and Mrs. Elmer J. Black monies advanced by said K. L. Wickett as managing partner of an oil and gas lease in which Elmer J. Black and Mrs. Elmer J. Black owned a 12/80ths interest, and to have the same decreed a lien in favor of the plaintiff and against the interest held by the defendan...
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This is a suit instituted In the district court of Jackson county by Keller-Kohn Company against Velma Little and J. J. Little to recover a balance of $288 alleged to be due plaintiff on account of merchandise sold and delivered to the defendants. The case was tried by a jury, resulting in a verdict and, judgment for defendants. Plaintiff appeals to this court. The controversy in this case aris...
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A civil action commenced in the district court of Washington county, Okla., May 23, 1925, wherein Ida B. Ward was plaintiff and Oklahoma State Bank of Ochelata was defendant. The jury returned a verdict for the plaintiff, and the court entered judgment thereon, and the case is appealed to this court for review. We shall refer to the parties, respectively, as plaintiff and defendant, as they appear...
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The parties will be referred to as they appeared in the district court. The plaintiff, W. H. Wilson, brought an action against the defendant, city of Lawton, for damages on account of certain alleged acts of negligence on the part of the city. The plaintiff recovered judgment against the city of Lawton for the sum of $1,615, from which said defendant prosecutes an appeal to this court. The first p...
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The plaintiff in error, hereinafter called defendant, upon a charge of assault with intent to kill, was convicted in the district court of Bryan county for an assault and battery and his punishment fixed at a fine of $100 and confinement for 30 days in the county jail. *161 The defendant has made some suggestions in his brief in reference to the jury in connection with the Ku Klux Klan. There...
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The appellants were jointly tried and convicted on an information charging the unlawful transportation of whisky from a point unknown to a point between sections 29 and 30, township 17 north of range 25 West, I. M., Roger Mills county. The jury fixed the punishment of the defendant Sullivan at a fine of $250 and confinement in jail for 90 days, and the punishment of the defendant Condo at a fine ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of maintaining a public nuisance and was sentenced to pay a fine of $100 and to serve 30 days in the county jail. The information charges in substance that defendant maintained and operated a public dance hall as a *Page 151 nuisance at a concrete block building, formerly a bottlin...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county on a charge of the fraudulent destruction of insured property and was sentenced to serve a term of four years in the state penitentiary. Section 2168, Comp. St. 1921. Briefly stated, the facts are about as follows: Defendant had been in partnership with one Swanson in the manufacture and stora...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of receiving stolen property, *Page 170 and was sentenced to serve a term of five years in the state penitentiary. The information charges, in substance, that defendant received from "Candy" Renfro and Raymond Garrett, for a consideration of $200, an automobile which had previous...
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Appellant was convicted on a charge that he did have in his possession four pints of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment an appeal was perfected by filing in this court, March 6, 1926, petition in error with case-made. No brief has bee...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okfuskee county on the charge of having the unlawful *Page 168 possession of a still, and was sentenced to pay a fine of $500 and to serve a term of 90 days in the county jail. The record discloses that defendant had leased for agricultural purposes, and was in possession of certain premises upon which a st...
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The information in this case charged that in Woods county, on or about the 15th day of January, 1'926, Jess Downard, the defendant, “then and there being wilfully, intentionally and unlawfully did have the possession of certain spirituous liquor, to wit, corn whisky, with the willful and unlawful intent on the part of him, the said Jess Downard, to then and there sell, barter, give away and furni...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county upon a charge of having the unlawful.' possession of intoxicating liquor, and was sentenced to pay a fine of $500 and to be imprisoned in the county jail for a period of 6 months. The record discloses that on December 17, 1923, certain officers procured a search w'arrant, and searched the res...
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The appellants were jointly tried and convicted on an information charging that they did have in their possession 35 bottles of Choctaw beer, said beer containing more than one-half of 1 per cent. of alcohol measured by volume, and in accordance with the verdict of the jury were each sentenced to pay a fine of $75 and to be confined in the county jail for 45 days. To reverse the judgment they appe...
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Plaintiff in error was convicted in the district court of Adair county on an information charging the unlawful possession of one-half gallon of whisky, second offense, and in accordance with the verdict of the jury was sentenced to- pay a fine of $50 and be confined in the county jail for 60 days. *185 From the judgment an appeal was perfected, but no brief has been filed and no appearance ma...
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The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Tulsa county on a charge of forgery in the second degree, and were each sentenced to serve a term of 3 1/2 years in the state penitentiary. The prosecution is based on section 2095, Comp. Stat. 1921, which is as follows: "Any person who, by false representation, artifice or deceit procures from another ...
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On information charging W.A. Adams and May Adams with transporting intoxicating liquor from a point unknown in Seminole county to a point on a section line about one-fourth mile north of Wewoka, they were jointly tried. May Adams was acquitted, *Page 174 and the appellant was found guilty as charged, and in accordance with the verdict was sentenced to pay a fine of $300 and to be confined in the ...
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Appellant, Bill Kirk, was convicted *Page 186 of burglary in the second degree alleged to have been committed in Tulsa county, November 23, 1925, and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for a term of two years, the judgment rendered February 18, 1926. From the judgment an appeal was perfected by filing in this court on August 7, 1926, petit...
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Appellant Ernest Hughes and Howard Love were charged in an information with the murder of J. A. Sewell. A severance was granted, and appellant upon his trial was convicted as charged and his punishment assessed at life imprisonment in the penitentiary. From the judgment rendered in pursuance of the verdict he appeals, but no brief has been filed or appearance made in his behalf in this court. T...
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This is an action against certain stockholders of the former Central Bank of Phoenix, hereinafter called the bank, based on section 11, article 14, of the Constitution of Arizona, and section 23 of chapter 31, Session Laws of 1922, commonly known as the state Banking Code, to recover the double liability referred to in those sections. Originally there were some eighteen separate suits filed, one a...
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Plaintiff in error, J.B. Alford, was convicted on a charge that on or about the 8th day of August, 1925, within the corporate limits of the city of Tulsa, he did have in his possession one gallon of alcohol with the unlawful intention to sell the same, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and imprisonment in the county jail for 90 days. *Page 188 T...
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This is an appeal from an order denying the petition of G. Fischer, hereinafter called appellant, to have certain promissory notes signed by him, and held by appellee, A.T. Hammons, superintendent of banks, as receiver of the Bank of Jerome, an insolvent banking corporation, hereinafter called the bank, declared void and of no effect as to him, and to have his signature thereon canceled. The petit...
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The opinion of the court was delivered by This is an appeal from a judgment convicting the defendant of having possession of intoxicating liquor. There are eight assignments of error, but the only matters argued may be summarized into the statement that the defendant contends that there was not evidence sufficient to sustain the verdict of the jury. There was evidence which tended to prove the fol...
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The opinion of the court was delivered by This was an action by the Union State Bank to recover moneys loaned to Wells H. Chapman and Lida M. Chapman, a part of which was secured by mortgages, and for the foreclosure of the mortgages, and to obtain a judgment for unsecured obligations. The plaintiff recovered and defendants appeal. One of the mortgages involved was for $3,000, executed on June 6,1...
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(dissenting): I cannot concur in the conclusion reached by the majority of the court. Under all the circumstances, *261it was inherently dangerous for the deceased to attempt to alight between the two trains, each running at fifteen miles per hour. The result itself proves that fact. The question as to whether or not the brakeman was more familiar with the situation than the deceased; that the bra...
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The opinion of the court was delivered by This was an action to set aside three deeds to certain Wabaunsee county lands which defendants had procured from their aged father. The action was based on allegations of fraud and undue influence and was originally begun by the father himself. On his death the litigation was carried on by his executrix, and also by three brothers and a sister of the defen...
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*321The opinion of the court was delivered by In the main, these cases depend on similar facts. The actions are to cancel oil and gas leases and to collect damages and attorney’s fees. In each, judgment was rendered in favor of the defendants; and in each, the plaintiff appeals. The plaintiff owned a large quantity of land in Cowley county. On June 3,1921, he entered into a written contract with t...
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The opinion of the court was delivered by These are two actions for damages for libel. Harry Chisler is plaintiff in one and Wilbur E. Stone in the other. The pleadings are identical except the names of the plaintiffs. The defendants are H. E. Randall, George E. Gano and F. S. Macy. The cases were consolidated and tried to a jury in the court below. Each of the plaintiffs recovered a judgment for ...
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The opinion of the court was delivered by The action was one by a creditor of a corporation to recover from its managing officers the amount of a mercantile account due from the corporation. Plaintiff recovered against Leppellman and Edwards, and they appeal. The Edwards-Leppellman Mercantile Company was a corporation doing a merchandising business in the city of Independence. C. E. Leppellman and...
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The opinion of the court was delivered by The defendant was convicted of obtaining money by false pretenses and appeals. According to the evidence for the state, the defendant was one of three men who very cleverly imposed on the confidence of one C. P. Hale, whereby they fraudulently induced him to make repeated investments in a certain oil and gas lease of little or no value. 1. The first error ...
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The opinion of the court was delivered by This is an action by the widow and sole dependent of a deceased workman under the workmen’s compensation act. ' Plaintiff recovered, and defendant has appealed. The principal question argued is whether the injury which caused the death of the workman arose out of and in the course of his employment. The evidence tends to show that the workman, John Byron ...
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The opinion of the court was delivered by The action was one to recover the price of sand sold for use in constructing an improved highway, from 'the construction company and the surety on its bond. Plaintiff prevailed, and defendants appeal. Plaintiff was engaged in producing and marketing sand. The Walnut Grove Sand Company was also a producer of sand, whose equipment was leased to Harry T. War...
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The opinion of the court was delivered by Appellant was found guilty of the possession of intoxicating liquor, in violation of the statute (R. S. 21-2101). The evidence was sufficient to sustain the verdict. The legal questions sought to be raised are trivial in the extreme. They have no merit. The judgment of the court below is affirmed....
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The opinion of the eourt was delivered by The Farmers State Bank, of Wichita, appeals to this court from a judgment rendered against it in the district court of Sedgwick county for $750 in favor of the plaintiff, Joe Meinhart, for damages sustained on account of injury to his credit because of the failure and refusal of the bank to honor his checks drawn thereon *334when he had in said bank funds ...
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The opinion of the court was delivered by This appeal presents the question whether an employer under the workmen’s compensation act, who agrees to arbitrate the single question of amount of compensation, is precluded from a trial of other issuable questions. The plaintiff claimed to have received an injury by accident which arose out of and in the course of her employment. The parties signed a w...
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The opinion of the court was delivered by This is an action by a widow and sole dependent of a deceased workman under the workmen’s compensation act. From a judgment in her favor defendant has appealed. The sole complaint is that the court erred in rendering a lump-sum judgment. It is contended that under the proceedings in this case the court was without power or jurisdiction to render a lump-su...
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The opinion of the court was delivered by This action was brought to obtain a construction of the will of August Ziebell and to determine the rights of plaintiffs and defendants in the property owned by him at his death. On August 3, 1917, August Ziebell had six living children&emdash;five daughters, Amelia, the plaintiff, Hilma, Alma, Minnie and Ellen, and one son, August C. Ziebell. On that dat...
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Plaintiff brought this action to recover upon a contract for the sale of lots in Port Mann, British Columbia, entered into between the defendants as purchasers and the Peoples Trust Company, Ltd., as sellers, the contract having been assigned to the plaintiff. By way of affirmative defense, the defendants set up that they had been induced to execute the contract through fraud of plaintiff’s ass...
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The opinion of the court was delivered by An opinion was filed in this action on May 7,1927 (123 Kan. 550, 256 Pac. 153). All of the facts necessary to an understanding of the action were stated in the former opinion except that, in the thirty-first cause of action set out in the petition, the article complained of did not concern the plaintiff.. For that reason, it necessarily did not state a cau...
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This appeal is prosecuted from conviction and sentence upon a charge of being gamblers. A large number of errors are assigned, but two of which require any extended discussion. [1] The first arises upon the question of whether the court improperly sustained objection to the cross-examination of the state's witness Shoeneman. The witness, who had given damaging evidence against appellants, having b...
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The respondent,' the Mutual Sales Agency, and the appellant, Hori, are each brokers, and engage, as part of their respective businesses, in buying and selling potatoes. The respondent does business at Yakima, in this state, and the appellant at Whitefish, in the state of Montana.. Oñ ■ March 31, 1926, the respondent sent the appellant, a telegram, reading as follows: “Quote us your best price c...
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This action was brought to recover for personal injuries sustained by plaintiff when she was struck by an automobile stage. From a verdict in her favor and judgment entered thereon, the defendants have appealed. The principal question urged upon appeal is: Was the respondent guilty of contributory negligence as a matter of law? The accident occurred about 6:30 on the evening of December 21, 1925, ...
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This is another action by the receiver to collect assessments from the subscribers to stock in the Thrift Club. Melville v.Rhodes, 136 Wash. 220, 239 P. 560. It appears from the evidence that the defendant, a lawyer by profession, subscribed for one share of stock, payable at ten dollars per month. There was a nominal charge of one dollar made at the time of subscription, which was paid, together ...
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Plaintiff brought this action to recover assessments on stock in the Thrift Club, owned by the defendants. An attachment was .issued against an automobile of defendants. The complaint was filed on August 31, 1926. On September 1, 1926, defendants moved to discharge the. attachment. On September 4, an amended complaint was filed and the motion for discharge was argued against it, and the court gra...
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One Joseph Miller brought an action against the Western Stevedore Company for damages on account of personal injuries. The case came to trial. At the close of the plaintiff's evidence, the following occurred: "MR. CAREY: At this time, the defendant, at the close of the plaintiff's evidence, challenges the sufficiency of the evidence, and moves for a judgment in favor of the defendant upon the grou...
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This action was commenced in December, 1925, to recover the possession of lands and to set aside a tax deed, made and delivered by the county treasurer pursuant to a judgment of the superior court. The land was sold at a tax foreclosure sale on October 13, 1917, and the treasurer's deed therefor executed the same day, more than eight years before the commencement of this action. During the foreclo...
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Plaintiff was employed by the defendant for a period of twenty-three months in a room where there was a tank into which was poured each day a large quantity of sulphuric acid and muriatic acid. He brought this action for damages, claiming that gases and vapors were released in the room where he worked which inflamed and affected his lungs and lessened his resistance to tuberculosis, as a result of...
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On May 6, 1926, John Lang was ill in a hospital at Rochester, Minnesota. On that day he wrote two letters to his sister, Mary Steuer, at _______. They were as follows: "Rochester, Minn., May 6, 1926. "Dear Sister: "This is to let you know that we have been here two weeks and that I will be operated on the 7th of May for throat trouble. The doctors say that it will not be dangerous, but they don't ...
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This is an appeal by the defendant from a judgment rendered against him, after trial to the court, in a personal injury action. The facts are somewhat novel and are but little disputed, except as to certain matters to which we will give attention later. Respondent Dale T. Jones, hereafter referred to as though he were the sole respondent, was an automobile mechanic, employed in his father’s g...
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This action was commenced by plaintiffs to quiet title to certain parcels of real property in the city and county of San Francisco, alleging that they were tenants in common of the same. The city and county of San Francisco filed a formal answer thereto, but no proof was made by them at that trial. Francis J. Sullivan filed an answer asserting that "he has a right, title and interest in the real p...
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This is an action by plaintiffs under section 749 of the Code of Civil Procedure to determine adverse claims to what is known as lot 13 of the Whitworth tract, county of Los Angeles. The real dispute centers around the easterly 42.1 feet of said lot 13. It appears that on the twentieth day of January, 1883, and for some time prior thereto, one Christopher Greve was the owner of a tract of land ...
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Application for writ of mandate to compel respondents to appropriate for the conduct of the department of elections the respective amounts itemized and set forth in its budget estimate and to adopt and levy a tax rate sufficient to provide for the amount set forth herein. Writ denied. The above causes have been consolidated in the argument presented therein to this court, and as they present the s...
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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 112 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 113 This is an original application for a writ of mandate by the Board of Education of the City and County of San ...
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By the complaint in this action it is alleged that on June 29, 1922, plaintiff's assignor, a contractor, entered into a written agreement with defendant whereby said contractor agreed to furnish the necessary labor and materials required for the construction of a one-story brick and concrete garage in San Francisco, and said defendant agreed to pay to the contractor therefor the sum of $3,000; tha...
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A former judgment of reversal in this case was set aside on petition for rehearing in order that further consideration might be given to the contentions of the defendant. Upon such further consideration we are unable to arrive at a different conclusion. Two actions were brought by plaintiff based on amounts claimed to be due on interest coupons detached from certain bonds of the defendant Irrigati...
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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 161 Defendant was charged by information containing a number of separate counts, with the making, forging, altering, and counterfeiting of certain checks and contracts. The jury found him guilty of the crime of forgery and from a judgment entered upon that ve...
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This cause was transferred to the supreme court after decision and judgment in the second division of the district court of appeal of the first district, on petition of the appellant, who. contends that the decision is in error in holding, first, that the representations made by the defendant were merely statements of his opinion, and not of facts, and, second, that the plaintiff treated the answ...
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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 207 This is an appeal from an order admitting the will of decedent to probate. The Security Trust and Savings Bank of the city of Los Angeles filed a petition in the superior court of the county of Los Angeles for the probate of the holographic will of Harry ...
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This appeal was taken by the defendant Title Insurance and Trust Company, a corporation, from a judgment entered in favor of the County of Riverside decreeing the foreclosure of a lien upon defendant's real property as security for the payment of a charge of $1,260.71, including interest and costs, on account of expenses and costs incurred by said county in the abatement of a nuisance after notice...
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The application herein for a writ of mandate is denied. Neither the transcript of the min *500 utes of the trial court nor of the entries in the clerk’s docket show that said cause was ever ordered submitted for determination and decision. On the contrary it appears from said docket entries and from the files in said cause that on February 28, 1927, which was long after the trial court had dire...
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This is an appeal by the plaintiff from a judgment in favor of the above-named defendants who had signed a proposed agreement for exchange, reading as follows: "This agreement witnesseth: That J. Willis, Maria A., Theresa S. and Frances W. Griebnow owner of the following described . . . First Piece of property situate, lying and being in California, County of Imperial . . . all of which we desire ...
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Pursuant to a complaint filed in the justice's court of Temescal township, county of Riverside, charging the defendant therein (petitioner here), with the commission of a felony, defendant was arrested and after examination was committed and ordered to be held for trial on information to be filed in the superior court. The defendant, however, in accordance with the magistrate's order admitting him...
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The contestant appeals from a judgment, order, and decree overruling her objection to the admission to probate of the foreign will of the deceased and admitting the same to probate and appointing the petitioner administrator of the estate with the will annexed. [1] The sufficiency of the proofs of the foreign probate is the sole question presented on this appeal. The petitioner produced and offere...
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The respondents herein petitioned the superior court for an order to compel the Board of Building and Safety Commissioners of the City of Los Angeles and the chief inspector of that board to issue a permit to erect a building on certain real property situated in said city. Appellants, although given legal notice, made no appearance by answer or demurrer. However, at the time of the hearing on the ...
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Two appeals are here presented under one record, an appeal by plaintiff from a judgment of nonsuit in one case and from a judgment in favor of defendant in the other. Plaintiff brought one action as administratrix of the estate of her mother, Ellen M. McIntosh, deceased, to cancel certain deeds made by her mother to her sister, May J. McIntosh, the defendant. Plaintiff also brought another action,...
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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 442 This is an action by a shipper against a common carrier for damages for negligence in transporting two carloads of grapes from Fulton, California, to Buhl, Minnesota. The negligence alleged in the complaint was unusual delay and failure to properly ice th...
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In Banc. AFFIRMED. Plaintiff, as judgment creditor, levied upon 120 acres of land owned by the defendant. Upon motion to confirm the sale, the defendant objected, *Page 495 asserting that the property was exempt from sale upon execution by reason of its being his homestead. The matter was submitted upon affidavits and counter-affidavits and the trial court set aside the sale in accordance with 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 646 Defendant was convicted in the Circuit Court for Clatsop County of piloting a foreign vessel under register without having a state license therefor. He was sentenced to pay a fine of $500 and has appealed from the judgment. He was indicted under Or. L., S...
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In Banc. ORDER OF DISBARMENT. On November 29, 1926, the Multnomah Bar Association instituted disbarment proceedings against L.H. Tarpley, and on that day an order was made by this court, directing that a copy of the charges be served upon him within five days thereafter, and that, within twenty days from date of service of process, he appear and answer the charges preferred against him. Defendant ...
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The opinion of the court was delivered by In this original action in quo warranto the state challenges the right of defendant L. R. Penner to hold the office of trustee of Lexington township, in Johnson county, on the ground that he was not regularly nominated at the August primaries in 1926. Defendant answers that whatever the circumstances of his nomination, no timely objection as permitted by s...
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The opinion of the court was delivered by The action was one to recover on an account for merchandise sold by plaintiff, to defendant. The verdict and judgment were for defendant, and plaintiff appeals. Hagan was a merchant at Smith Center, and purchased goods of plaintiff for several years. Hagan sold out to Kirk, to whom plaintiff had previously sold goods. Kirk was not able to pay Hagan in full...
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The opinion of the court was delivered by The action was one to recover for lumber and materials furnished in the construction of an addition to the Argentine high school. Plaintiff prevailed and defendants appeal. The facts are substantially these: The defendants, Brown and Grube, entered into a contract with the board of education of Kansas City, Kan., November 13, 1922, to erect an addition to...
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The opinion of the court was delivered by This is a suit by Charlotte E. Hazen against John Ferriter, commenced in the district court of Sedgwick county *262in September, 1925, upon a note where the answer, in addition to a general denial, contains a denial of the execution of the note, a plea of payment, a plea of bar by the statute of limitations, and want of consideration. The answer was verif...
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The opinion of the court was delivered by This is an appeal by the Kansas soldiers’ compensation board, from a judgment directing payment of compensation to the plaintiff for his services in the United States marine corps during the world war. The petition recites that application for compensation was filed “on the-day of-, 192 — .” The defendants in their brief say the application was filed in Se...
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The opinion of the court was delivered by The action was one to subject the proceeds of the sale of certain real property to payment of a judgment in federal court. The controversy involves validity of an assignment of such judgment to plaintiff. The plaintiff prevailed and defendants appeal. The facts are substantially these: M. B. Altenburg and F. J. Oyler were sued jointly in federal district ...
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The opinion of the court was delivered by This is an original proceeding in habeas corpus brought by Fred Hollis, of Saline county, against J. B. Archer, probation officer of that county, and M. C. Brownell, of the same ■county, for the liberty and the care and custody of Raymond Edward Hollis, a minor son of the petitioner, also a resident of Saline county and between four and five years of age. ...
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The opinion of the court was delivered by The action is one to recover taxes paid under protest. Judgment was rendered in favor of the defendants, and the plaintiff appeals. The action was tried on an agreed statement of facts which disclosed that the plaintiff, a corporation, operated a terminal warehouse elevator at Anthony and local elevators at other points; that the plaintiff made out and re...
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The opinion of the court was delivered by The Citizens State Bank, of El Dorado, as assignee of a school-district warrant, sued school district No. 115 in Butler county, which issued it, and one A. H. Murphy, the assignor, to recover the amount of such warrant when the district failed to pay it. The school district answered alleging the invalidity of the warrant because the issuance thereof had no...
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The opinion of the court was delivered by Emma Crouch brought this action against the Missouri Pacific Railroad Company to recover for injuries alleged to *306have been sustained by her husband, Chas. Crouch, while in the employ of the defendant, which injuries were caused by defendant’s negligence and resulted in his death. In its answer the defendant denied that the injuries were the result of ...
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The opinion of the court was delivered by Plaintiff was the owner of a 280-acre farm, part of which lay north of an east-and-west road and the remainder of it south. On August 15, 1923, she leased this farm to defendants for a term of seventeen months beginning October 1, 1923, and ending March 1, 1925, reserving for her own use a small house-and-garden patch on the east end of the farm. The tenan...
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The opinion of the court was delivered by The defendant was prosecuted on a charge of arson for the burning of a barn on a farm which he held as tenant, the title to the farm being one-half in his mother and one-sixth each in defendant’s brother, sister, and himself. The barn was burned in August, 1925, and defendant was arrested therefor some time later. His first trial was without result. At the...
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The Merchants National Bank of Omaha, Nebraska, plaintiff, sued W.L. Ayers, defendant, to recover the amount due on a promissory note discounted by the plaintiff for the Platte County State Bank of Wheatland, Wyoming. The case was tried to a jury and the verdict and judgment were for the defendant. The plaintiff appeals. The defendant was sued as guarantor. He was one of the signers of the followi...
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The defendant, petitioner in error herein, was convicted of violating the prohibition law, and he brings error. 1. The information in this case contained four counts, charging the defendant in the first count with keeping intoxicating liquor for sale; in the second count with unlawful possession of intoxicating liquor; in the third count with unlawfully manufacturing intoxicating liquor; and in th...
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This was a suit in mandamus brought in the District Court of Fremont County on the relation of Charles Van Patten and Albert Myers to compel L.N. Ellis, as clerk of the School Board of School District No. 11 in said county, to draw and deliver to relators warrants in their favor in the sum of $180.00 to each, and also to pay certain sums alleged to be due relators on account of certain proceedings...
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R. Harvey Reed died on January 30, 1907, a resident of Sweetwater County, leaving a last will and testament, in which he appointed his sons Gail Reed, then about twenty-three years of age, and Penrose Reed, then about twenty years of age, as his heirs, and in which he directed his executor to act as trustee under the will to invest the net estate at interest or in such manner as he should see fit,...
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OPINION OF THE COURT The petitioner was tried and convicted of usury and fined by a justice of the peace of Bernalillo county. In default of payment of the fine he was committed to the county jail. He thereupon sued out a writ of habeas corpus in this court to secure his release. The proceedings against the prisoner were prosecuted under the provisions of section 3528, Co...
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OPINION OF THE COURT [1, 2] A suit for injunction was brought by the appellants against the board of county commissioners to enjoin the issuance of bonds of the county for the purpose of obtaining funds for the construction and repair of roads and bridges in the county. The court below denied the injunction, and the appellants brought the case here by appeal. Since that t...
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OPINION OF THE COURT [1] Appellant obtained a final decree of divorce from appellee, in Bernalillo county, on service by publication. Thereafter appellee commenced, in the same court, the present suit to vacate the said decree, upon the ground of appellant's fraud in suppressing notice of the proceedings, and the further ground that the district court of Bernalillo county...
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Mr. L.A. Foot, Attorney General, and Mr. C.N. Davidson, Assistant Attorney General, for Respondent, submitted a brief;Mr. Davidson argued the cause orally. On July 26, 1926, while the three county commissioners of Lewis and Clark county were returning from a trip of examination and inspection of the county roads, the automobile in which they were riding turned over while rounding a sharp curve and...
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By information G.V. Woolsey and W.B. Stone were charged jointly with the crime of obtaining money by false representation and pretense from one Cora M. Doll. Specifically, it was charged that between the twenty-ninth day of March, 1923, and the second day of July, 1923, they represented themselves, respectively, to be the secretary and agent of the Western Home Improvement Company, a corporation; ...
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THE plaintiff in error will be designated herein as the defendant. Mrs. Muller, the defendant, was found guilty of vagrancy and sentenced to pay a fine of $200 and costs, and to thirty days' imprisonment in the county jail. She prosecutes this writ of error and applies for a supersedeas. Counsel have agreed that the case may be disposed of on this application. The only question involved here, that...
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F. C. Stewart, plaintiff in error, and Leo Ludlow, defendant in error, were each in the oil and gas brokerage business in the city of Tulsa. Stewart had a customer who desired to buy some oil property. Stewart went to Ludlow and requested Ludlow to find suitable property for sale to Stewart's customer. Ludlow informed Stewart that he had listed and for sale certain oil property located in Osage co...
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This is a suit brought by the plaintiff in error, as plaintiff, against the defendants in error, as defendants, seeking the specific performance of a contract for an assignment of an undivided three-fourths interest in an oil and gas lease on certain land in Creek county, Okla. Thomas Hendrickson was the allottee of the land, and prior to his majority an oil and gas lease was executed in favor of ...
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On December 15, 1924, E. M. *Page 138 Flowers filed his petition in the district court of Bryan county, against the Niagara Fire Insurance Company, alleging that on May 31, 1924, defendant, an insurance company, by and through its local agent, H. D. Pierson, and its state agent, made settlement with and agreed to promptly pay plaintiff the sum of $750 in settlement of a claim of plaintiff on loss...
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This action arose in the district court of Carter county, wherein Swift Company sued Geo. W. Colvert for recovery of the sum of $1,108.07, alleged to be due the plaintiff for fertilizer furnished and consigned to defendant by plaintiff under written contract between the parties. Defendant filed his answer and amendments thereto, denying the allegations of plaintiff's petition, and further alleged...
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The parties to this appeal occupy the same position in this court as in the district court, and will, therefore, be referred to as plaintiff and defendants. The plaintiff brought an action for the recovery of certain real estate and joined therewith an action for a money judgment on account of the use and occupation of said real estate by the defendants. The defendants filed a demurrer to the peti...
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John C. DeLana, plaintiff below and hereinafter called plaintiff, sued Mrs. Sierra N. Curry, defendant below and hereinafter called defendant, upon a promissory note and to foreclose a real estate mortgage given to secure the same. Issues were joined and judgment rendered for the plaintiff on the 14th day of April, 1925. In November, 1925, the defendant filed a petition to vacate and set aside the...
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This is an original action in this court to review an award of the State Industrial Commission made on the 31st day of March, 1927, wherein the petitioner was ordered and directed to pay to the respondent, Charles B. Williams, the sum of $234 for temporary total disability resulting from an accidental injury received by him in the course of his employment with the petitioner herein. The petition t...
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Frank Hajek, defendant in error, filed his action in the district court of Cotton county against plaintiffs in error, *Page 60 praying for a judgment quieting title to certain real estate located in Cotton county. Issues were joined by defendants, plaintiffs in error here, filing their fourth amended answer to Hajek's petition, and upon trial to the court judgment was rendered in favor of Hajek q...
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This cause comes here on appeal from the district court of Grant county where the defendant in error, who was plaintiff below, brought suit against plaintiff in error, who was defendant below, for $157, claimed to be due for medical services in attending, as physician, a sick employee of plaintiff in error. The cause was tried to a jury, resulting in a verdict and judgment in favor of plaintiff fo...
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The parties hereto will be referred to as plaintiff and defendant, as they appeared in the trial court. Plaintiff brought suit in the district court of Tulsa county alleging that plaintiff and Homer S. Crossman entered into a contract by the terms of which it was agreed that Crossman should furnish the money to buy certain lands located in Creek county, Okla., and that the same should be sold by t...
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This action, which was in the nature of a creditor's bill, was brought by the Vacuum Oil Company, a corporation, against Frank E. Quigg, Nellie E. Quigg, S.C. Frost, and the First National Bank of Bixby, Okla., for the purpose of setting aside certain transfers and incumbrances of real estate by the defendants, alleged to have been fraudulent and made without consideration and for the purpose of a...
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Parker was the plaintiff below and August Kroeger the defendant below. They will be referred to herein as they appeared in the trial court. This is an appeal by the defendant on the transcript of the record from a default judgment in favor of the plaintiff in the approximate sum of $5,000 based on an attachment and service of summons by publication. The appeal is based solely on jurisdictional gro...
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Plaintiff in error has filed herein a brief in reply to the answer brief of the defendant in error. Following the filing of this brief, the defendant in error has filed a brief in response to the reply brief of the plaintiff in error, in which last-mentioned brief counsel for defendant in error makes a derogatory comparison of counsel for plaintiff in error with a witness in the case whose credibi...
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Upon the authority of Losera Matthews v. D.C. Morgan and M. L. Asbury. No. 15192, this day decided, 127 Okla. 74259 P. 867, the judgment of the trial court is herein affirmed. The syllabus in that case is adopted in this case. BRANSON, C. J., MASON, V. C. J., and HUNT and HEFNER, JJ., concur. PHELPS and LESTER, JJ., dissent. HARRISON, J., absent, not participating. CLARK, J., disqualified, having ...
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Plaintiff in error was plaintiff below. She was a minor and a member of the Choctaw Tribe of Indians. The land involved was allotted to her by reason of her enrollment as a member of said tribe. T. A. McManus was regularly appointed her guardian, and as such instituted proceedings in the county court of Atoka county for a sale of the land in controversy. As grounds for the sale of the said land th...
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Upon the authority of Losera Matthews v. D.C. Morgan and M. L. Asbury. No. 15192, this day decided, 127 Okla. 74,259 P. 867, the judgment of the trial court is herein affirmed. The syllabus in that case is adopted in this case. BRANSON, C. J., MASON, V. C. J., and HUNT and HEFNER, JJ., concur. PHELPS and LESTER, JJ., dissent. HARRISON, J., absent, not participating. CLARK, J., disqualified, having...
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This is an action to recover the purchase price of an oil well rig sold by plaintiff to defendant A. R. Jenkins, and to foreclose a materialman's lien on the oil and gas lease and leasehold estate. Upon issues joined personal judgment was rendered for plaintiff against defendant Jenkins, who does not appeal, and against the other defendants sustaining the lien and foreclosing same. From this judgm...
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The parties in this court appear in the inverse order to that in the district court. For convenience they will be referred to as they appeared in the court below. On the 3rd day of October, 1918, the plaintiff and defendant entered into a written contract, which contract provided that for and in consideration of an assignment of a certain oil and gas lease by the plaintiff to the defendant the def...
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This is an original proceeding in habeas corpus. The petitioner alleges that he is unlawfuly restrained by the chief of police of Oklahoma City; that the cause of said restraint is that on May 6, 1927, petitioner was engaged as a newsboy in selling the Oklahoma News, a newspaper, in Oklahoma City; that he was arrested charged with a violation of Ordinance No. 3151 of said city, in announcing in a ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of having the unlawful possession of a still and was sentenced to serve a term of 90 days in the county jail and to pay a fine of $200. Several assignments of error are argued: First, that chapter 42, Second Session of the Ninth Legislature, Session Laws 1923-24, the act under which the prose...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. The record discloses that at the time charged a deputy sheriff driving along the highway passed a Ford car driven by defendant. In passing he saw in the rear of the ca...
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TOLMAN, PARKER, FULLERTON, and ASKREN, JJ., dissent. Plaintiff, Clarence C. Chambers, a resident of Spokane, having engaged in the lumber and timber business and as a timber cruiser for a number of years, had knowledge of considerable of the timber lands in northern Idaho. His knowledge of such lands had been acquired by his own cruising and examination of such lands. The defendant Lindsey E. Kirk...
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W. F. Moody, a logger, by letter, offered to sell to Mackall-Paine Veneer Company cut spruce timber, known as veneer blocks. The veneer company answered that Moody’s letter was referred to their log buyer, T. O. Carney. Carney wrote to Moody agreeing to buy for the veneer company at prices stated for numbers 1, 2 and 3 blocks. It appears that he also gave specifications as to dimensions and quali...
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This suit was brought by the superintendent of banks, as receiver of the Mayer State Bank, to collect from J.E. O'Brien five promissory notes, taken over by the superintendent as part of the assets of such bank. The notes were in regular form, signed by O'Brien, and payable to the Mayer State Bank. The defense, as set out in the answer to the complaint, was: "That defendant did not, for himself or...
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On October 16, 1925, the Town of Winslow adopted an ordinance designating a certain part of the town in which it should be unlawful to keep or maintain any place for confining, keeping or feeding livestock, declaring such act, when committed within the defined district, a public nuisance and prescribing penalties for its violation. When the ordinance was adopted W.H. Burbage owned in the restricte...
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J. C. Carmichael brought suit against the Tremaine Alfalfa & Milling Company, a corporation, for damages he alleges he suffered as a result of the sale to him by the latter of twenty-four head of hogs, the claim being that the hogs were to the knowledge of the company affected with or had been exposed to cholera at the time of the sale. The jury returned a verdict in his favor for $900, and jud...
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This action is brought here on appeal from the superior court of Yavapai county, wherein the appellant, Jarvis, as plaintiff, sued as treasurer of Apache county for the use and benefit of Apache county, the appellee, A.T. Hammons, state superintendent of banks, acting as receiver of the Bank of Winslow as defendant, and wherein Benjamin Brown, Jr., filed, with leave of court a complaint in interve...
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This case was disposed of in the court's opinion in Jarvis v.Hammons (No. 2606), ante, p. 444, 259 P. 886. For the reasons set forth in that opinion, the judgment against the appellant here (Brown) must be affirmed. It is accordingly so ordered. *Page 457 ...
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Upon the trial the real difference was as to the character of the timber which affected the scale of the logs. Plaintiffs testified that they and their helper scaled the logs and that 223,000 feet were delivered at defendant’s mill, and that 100,000 feet was cut and rejected; all of which had been selected by defendant as good merchantable timber. Defendant pleaded and its witnesses testified tha...
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This case was disposed of in the court’s opinion in Jarvis v. Sammons (No. 2606), ante, p. 444, 259 Pac. 886. For the reasons set forth in that opinion, the judgment against the appellant here (Brown) must be affirmed. It is accordingly so ordered....
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In Banc. This is an action for compensation for services. The plaintiff and defendant entered into a contract whereby plaintiff was to work for defendant for a *Page 500 period of one year. Defendant agreed to pay plaintiff at the rate of $200 per month and as additional compensation 2 per cent of the increase of the sales over the preceding year. Plaintiff began her work for the defendant on 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 446 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 447 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 525 AFFIRMED. This is an action to recover the amount alleged to be due upon two promissory notes, aggregating $4,407.34, executed December 20, 1921, by Frank A. Rowe and indorsed by the defendant. The defendant seeks to avoid payment on the ground of duress....
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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 549 The plaintiff brought this action upon the policy of insurance known as Commercial "A" Policy, No. 0321067, issued by the defendant to plaintiff on July 21, 1922, whereby it undertook to issue and provide accident indemnity to plaintiff for total disabili...
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In Banc. AFFIRMED. This is a suit to enjoin the city council of the City of Astoria from putting into effect Section 81A, being an amendment to the city charter, which amendment is as follows: "The common council of the city of Astoria shall have and it is hereby given power and authority, by ordinance, to cancel and discharge any and all liens or other charges which may have been heretofore levie...
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In Banc. This is an action for conversion of personalty. On April 14, 1924, and for many years prior thereto, the City of Hood River, one of the defendants, was the owner in fee and in the possession of a tract of real property used as an automobile park. On that day the city sold and conveyed said tract to one Charles F. Batchelder, excepting, however, from the operation of the deed a certain bui...
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As stated in respondents’ brief, practically the only issue of fact in the case is as to whose money or property was used to make the payment of $1,825 for the land and such additional payments as were made later. Defendants Fredericka M. Eichhorst and Marie K. Jensen say it was theirs. It is upon this statement that they relied. The contract of sale was assigned to the plaintiff. As far as the J...
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In Banc. AFFIRMED. Plaintiff, a taxpayer of Klamath County, commenced this suit in the Circuit Court of *Page 516 that county to restrain the county commissioners from issuing and selling road construction bonds to the amount of $500,000. It appears from the complaint that prior to February 1, 1927, Klamath County had a large number of warrants outstanding, which it was unable to pay. In obedienc...
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In Banc. APPEAL DISMISSED. REHEARING DENIED. This case came on for hearing and respondent filed a motion to dismiss the appeal and affirm the judgment for the reason that no abstract has been filed as required by Section 554, Or. L., and Rule 6 of this court. No abstract has ever been filed, nor has any showing been made tending to excuse such neglect. This appeal will therefore be dismissed, and ...
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REVERSED AND REMANDED. *Page 506 Defendant appeals from a judgment of conviction of the crime of rape upon one Betty Gassner, a girl about 15 years old and under the age of consent. Defendant and his friend Earl Elliott were attending a public dance. While there the defendant, a man of 27 years of age, met Betty for the first time. It was not a matter of formal introduction. It appears, without c...
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John Efferson, a resident of Ogden, in Weber county, died June 24, 1925, leaving surviving him as his next of kin and only heirs at law two sons, John Terrill Efferson, aged eight years, and Harry Branch Efferson, aged six years. The mother of the two sons named had been the wife of the deceased, but before his death had been divorced from him. She also survived him. The deceased left a last will ...
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Respondent brings this action as assignee of the J.C. Penney Company, a Delaware corporation. Appellants are, respectively, the secretary of state and state treasurer of the state of Utah. The Attorney General of the state appeared in the action for appellants and filed a general demurrer to the complaint. The demurrer was overruled. Appellants elected to stand on their demurrer and declined to pl...
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The plaintiff brought this action to recover damages for injury to real property resulting from the defendant’s re *263 grading sidewalks and streets upon which the property abutted and adjoined. In such respect the plaintiff in his complaint alleged that long prior to 1923 the defendant established a grade of such streets and sidewalks; that between January, 1923, and March, 1924, the defendan...
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The plaintiff commenced this action to recover separate maintenance from her husband, Andrew S. Hyrup. Certain other persons to whom the husband had sold or contracted to sell tracts of real property were joined as defendants, but demurrers interposed by them to the plaintiff's complaint were sustained. The defendant, Andrew S. Hyrup, answered plaintiff's complaint by denying its material allegati...
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This is a proceeding to review an award of compensation to an injured employee, under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165). On January 10, 1926, Frank Nelson, while employed by the Western Clay Metals Company at its plant in Aurora, Utah, sustained an accidental injury which resulted in a total disability of his right hand. The employee was greasing an unguarded gear, us...
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This is an original proceeding in this court. Plaintiffs seek a writ prohibiting the district court of Weber county from entering and carrying into effect an order transferring to Salt Lake county for trial a certain action pending in that court in which Rachel M. Hale and Lea Miles, copartners, are plaintiffs, and Central Trust Company, a corporation, A.E.L. Scanlon, and Sidney G. Saville are def...
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Maud Wilson Levitt, respondent here, a niece of Anna M. Graves, deceased, and her only heir, filed a contest, after probate of the will of the decedent, alleging unsoundness of mind of the testatrix at the time of the execution of the document, and that the will was procured by the undue influence of John R. Black, appellant, to whom the decedent bequeathed practically her entire estate. After due...
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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 181 By this proceeding petitioner seeks to have reviewed and annulled a decision and order of the Railroad Commission, designated decision No. 16289, made on March 20, 1926, relating to its water rates, complaint being made of the valuation of its property fo...
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By an information filed in the Superior Court of Alameda County[1] Jesus Prudencio was charged with the crime of murder committed October 14, 1926, as follows: ". . . that he did then and there unlawfully, wilfully, feloniously and of his malice aforethought, kill and murder one Antonio Garcia." The foregoing was an allegation of murder of the first degree and included all the subdivisions and les...
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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 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 218 This is an appeal from judgment in favor of defendants in an action, under sections 3439 and 3442 of the Civil...
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Petitioner brought this proceeding in certiorari to have annulled an award made by the Industrial Accident Commission denying his application for compensation upon the ground that the same was barred by the provisions of section 11 of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 841). *Page 568 The record discloses the following facts: Petitioner on February 8, 1921, while employed as ...
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Letters of administration with the will annexed were issued to the proponent. Appellants filed a contest of the will and appeal from the judgment declaring the will to be valid and denying the contest. The ground of the contest is that the will was not entirely written, dated, and signed by the hand of the testatrix, Anna England. No signature appears at the end of the *Page 487 document, which 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 537 Appellant, Hattie Hollander, appeals from a judgment awarding damages for personal injuries sustained by plaintiff in being struck by said appellant's automobile. Her co-defendant, Arthur Hollander, was granted a nonsuit. The proof offered by the plaintif...
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The appellant, Mrs. Agnes Thornton, was tried upon an information containing two counts, the first charging her and one Bobby Clark with arson, and the second charging the same persons with burning insured property with intent to defraud an insurance company. The arson charged in the first count was the burning of a dwelling-house at 3615 Paloma Street, in the city of Los Angeles, and the second c...
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In an action prosecuted by the Chicago Lumber Company against Leal Sons Lumber Company, a writ of attachment was duly issued and placed in the hands of the defendant, who, pursuant to the authority thereof, seized certain lumber claimed by and in the possession of the plaintiff herein. Judgment in that action was rendered in favor of the plaintiff therein and the defendant herein sold the lumber ...
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The above-entitled actions were brought to recover damages for personal injuries alleged to have been suffered by each of the plaintiffs by reason of the alleged negligence of the defendant in the operation of one of its autostages, in the city of Ventura. Having grown out of the same accident and having involved the same facts relative to the accident, the actions were by stipulation tried togeth...
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Application for writ of mandate prayed to be directed to the Auditor of the City of Oakland to approve a salary demand. Upon the filing of the petition an alternative writ issued from this court commanding respondent to allow said demand or show cause to the contrary. In response thereto he has appeared and demurred to the petition. The facts and legal contentions in reference thereto are as follo...
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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 609 Judgment annulling marriage of Alice Jones Alameda to Joseph Alameda was entered in this case, and from this judgment the defendant appeals. The original complaint filed in this action was by J.M. Jones, the father of the minor, Alice Jones Alameda. A dem...
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This is an appeal taken from a judgment in favor of respondent on a petition for revocation of probate of the will of M. E. Melvin, deceased. The contest was on three grounds: First, that the decedent was of unsound mind at the time of the execution of the will; second, that the purported will was not executed in the manner required by law, in that the purported will was not, in the form in which...
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The defendant was tried upon an information charging a violation of section 508 of the Penal Code, covering the crime of embezzlement as an agent. From the judgment following the verdict of guilty and from the order denying defendant's motion for a new trial he has appealed upon a typewritten record. The defendant and the complaining witness were on very intimate terms during the early part of the...
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Plaintiff had judgment in an action to quiet title to certain tracts of land lying and being in the county of Tulare; also to certain city lots in the town of Kingsburg, in the county of Fresno; and to an undivided one-half interest in a certain ten-acre tract in Springfield Colony, in the county of Fresno. From this judgment the defendant appeals. The lands involved are described as the west half...
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The plaintiffs had judgment in the above-entitled action, and the defendant appeals. The record in this case discloses that on or about the twenty-first day of March, 1924, the plaintiff Fannie M. Cox was a passenger on a street-car then owned and operated by the defendant in the city of Sacramento. That at the intersection of Eighth and K Streets, in said city, the car in question came to a stop ...
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This is an appeal by Margaret Kinahan and Catherine Mongan from that part of the order of distribution in the matter of the estate of Rose Fritze, deceased, which adjudges that said Margaret Kinahan and Catherine Mongan are not entitled to share in the distribution of the sum of $3,766.56, the amount of said estate given by the will of said deceased to charity in excess of that allowed by law and ...
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This is an action based upon the alleged negligence of respondent, who is an attorney at law practicing in Los Angeles. Respondent was retained by appellants to represent their interests in the estate of Russell Wayman, deceased, which estate at the time of respondent's employment was in the course of probate in the superior court of Los Angeles County, and this action was brought after the decree...
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By an information filed on the ninth day of February, 1927, the defendant was accused of the crime of murder, in that the defendant did, on or about the twenty-fifth day of December, 1926, at the county of Butte, in the state of California, wrongfully, wilfully, unlawfully, feloniously, and with malice aforethought, kill and murder one Aleata Pearl Coan. Trial was had upon this information, and on...
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The defendant W.M. Roberts was convicted on two charges of embezzlement and was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial. The charging part of the first count of the information is as follows: *Page 699 That the defendant "was the agent and bailee of Pacific Gas and Electric Company, a private c...
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The defendant was charged by information with the crime of assault with a deadly weapon or instrument and by means and force likely to produce great bodily injury, and in a second count thereof, with involuntary manslaughter, both alleged offenses growing out of the same transaction. The defendant entered a plea of "not guilty" on each count, the cause was tried and the jury returned a verdict of ...
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Action to recover certain rentals under a written lease entered into by appellant corporation as lessee *Page 534 and one J.A. Turgeon as lessor on May 1, 1925. The lease was for a term of three years from the date thereof and provided for a monthly rental of one hundred dollars. At the time it was entered into the property therein described was owned by said lessor, but was subsequently transfer...
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As disclosed by the prayer of the petition herein, the purpose of petitioners is to prohibit the respondent Municipal Court from proceeding in an action therein pending in which respondent Yale is the plaintiff and the petitioners herein are the defendants. From the petition it also appears that each of such defendants is a resident of the city of Santa Monica, of the county of Los Angeles, in whi...
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On April 6, 1922, the appellant corporation (under the then name of "Sam Seelig Company") made and executed to George Helwig and W.A. Buhlinger a lease of certain floor space in appellant's store on Santa Monica Boulevard, in the city of Los Angeles, for the period of eight years from May 1, 1922. Paragraph seven of said lease contained the following provision: "This lease, or any part thereof, sh...
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The contestants appeal from the judgment and orders of the trial court admitting a foreign will to probate; appointing Citizens Trust and Savings Bank administrator with the will annexed; denying the contest of Joseph P. Mahoney, and overruling his objections to probate of said foreign will. On May 28, 1926, respondent Citizens Trust and Savings Bank, a corporation, of Los Angeles, at the request ...
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Plaintiff alleges that he was induced to make deeds, with grantee's name in blank, to properties described in this action and that the deeds were placed in escrow with one Mollie L. Ramey; that the name of Mollie L. Ramey was later written in as grantee and then erased and the name of F.S. Greening written instead, all without his authority or consent. The defendants admit the filling in of grante...
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This is an appeal from a judgment of conviction of the crime of robbery. The evidence showed that the appellant entered the grocery store of Salvatore Turco in San Francisco and by means of threats with a gun robbed Turco’s person and his cash drawer and also the person of Charles A. Prince, who happened to be in the store at the time. Appellant’s co-defendant Webb sat in an automobile outside th...
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Defendant appeals from a judgment of conviction of the crime of murder in the first degree. Upon recommendation of the jury, the sentence was imprisonment. The testimony shows that the defendant shot and killed Rosilina La Fata upon a public street in San Francisco on February 27, 1924. Defendant was identified by witness Robert Lantz, who was standing within a few feet of the deceased at the time...
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A proceeding in mandamus to compel respondent, as Auditor of the county of Alameda, to pay to petitioner compensation as a deputy sheriff of that county for the month of June, 1927. It was stipulated by the parties that at the general election held on November 2, 1926, a charter was adopted for the county of Alameda, which charter was ratified and approved by the legislature on January 18, 1927. T...
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DEFENDANT in error had verdict and judgment against plaintiffs in error in a suit based on their entry on its property and their taking therefrom certain personal property, machinery, tools, etc., of the plaintiff, and they bring the case here by writ of error. The court directed a verdict for plaintiff and left to the jury the question of damages only, instructing them to include therein the valu...
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delivered the opinion of the court. Wiesman sued and had judgment against Maher before justice of the peace, and, on appeal, upon trial to the court, had judgment again. Maher brings error. The judgment must be affirmed. The action was for damages for breach of the following contract: “This agreement, made and entered into this sixth day of October, A. D. 1924, by and between Jer...
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McDONALD, plaintiff below, had a verdict and judgment against the plaintiff in error, defendant below, for one dollar, in an action for converting and adulterating plaintiff's cream, and the defendant brings error. The defendant set up a counterclaim which charged plaintiff with the same conduct with which he charged defendant. The verdict on the counterclaim was for plaintiff. *Page 330 The comp...
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THE plaintiff in error (plaintiff below) sued George W. Foote, his father, and Della E. Foote, his stepmother, on a promissory note. While the suit was pending, George W. Foote died, and the Larimer County Bank and Trust Company, as administrator of his estate, was substituted for him as one of the defendants. The note sued upon is as follows: "$28,000.00 Loveland, Colorado, A...
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THE defendants in error, herein designated as the plaintiffs, brought this suit against plaintiffs in error, herein referred to as the defendants, to remove alleged clouds from, and to quiet title to, certain mining claims and property, and for injunctive relief. Trial to the court; findings and judgment for plaintiffs; and defendants prosecute error. It appears that on December 24, 1915, the plai...
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ONE Johnson was killed by the inhalation of gas in the Index mine in Cripple Creek district. The commission awarded compensation with fifty per cent addition to his widow, sole dependent, against the Index Mines Corporation, owner of the said mine, the district court affirmed the award, and the corporation brings error. The first point made by plaintiff in error is that the findings of fact do not...
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ON a verdict of guilty of embezzlement the plaintiff in error (hereinafter referred to as defendant) was sentenced to the penitentiary for a term of two to four years. To review that judgment he brings error and contends: (1) That while he was charged with, and convicted of, the embezzlement of $1,000 from the "Colorado *Page 235 Industrial Loan and Investment Company, a Corporation," there was n...
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ZAMP had judgment for possession against Lamon before justice of the peace in unlawful detainer; Lamon appealed to county court; Zamp, as shown by the bill of exceptions, moved that the appeal be dismissed because the statutory additional bond required by C.L. sec. 6388, had not been filed. The motion was sustained and the court ordered that the appeal be dismissed and procedendo be issued. In the...
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FRED King, defendant in error, was plaintiff below; Shafer and others were defendants. They will be referred to as there aligned. Plaintiff recovered judgment for damages to his crops alleged to have been caused by water escaping from the *Page 259 Pierce lateral ditch, owned by defendants. Plaintiff charged that it was due to defendants' negligence. The case has been tried twice to a jury. Plain...
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The defendant prosecutes this appeal from a judgment of the district court of Salt Lake county whereby a suspension of a sentence was vacated and the defendant ordered committed to the state prison for the crime of being a persistent violator of the prohibition law of the state. The case was heretofore argued and submitted to this court and an opinion rendered by a divided court affirming the judg...
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This is an action by Byron Sabin against E.C. Grasty and R.S. Grasty, partners, brought under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3162, as amended by Laws 1919, chap. 15) for personal injuries alleged to have been caused by an accident due to the condition of plaintiff's occupation. The defendant interposed in his answer to the complaint the defense that plaintiff's injury was...
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This is an action in mandamus growing out of an attempt to levy a tas of twenty-five (25) cents a lot on each and every lot in the Town of Hudson, for the purpose of furnishing water for irrigation of lands within the town. Subsequent to the filing of the petition, a hearing was had thereon, and an order was duly issued by the District Court of Fremont County directing the Board of County Commi...
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Plaintiff in error and appellant, hereinafter mentioned as appellant, applies for a rehearing, and the arguments and contentions now made are substantially the same as those originally presented on the question of whether the stock of the Farmers Lumber Company was all subscribed, it being again insisted that it was not. A careful re-examination of the question has convinced us that the conclusion...
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C. E. Sumner and members of his family, who owned the majority stock in the Sumner Coal Mining Company, in October, 1922, sold the same to Lot Ravencraft. The purchaser executed a series of notes in payment for the stock, and pledged the stock as collateral security. The purchaser also pledged other collateral for the payment of the indebtedness. It later developed that the notes and mortgages ple...
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The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Carter county on a charge of receiving deposits in an insolvent bank, and each were sentenced to pay a fine of $500. The information is joint and based on section 4128, Comp. Stat. 1921. It alleges that Walter Hodges was president and a director, the defendant P.W. McKay was vice president, the defendan...
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Appellant, Guy Keasler, and J.M. Mohundro were jointly charged with the crime of burglary. Upon his separate trial appellant was convicted, and in accordance with the verdict of the jury was sentenced to two years' imprisonment in the state penitentiary. He prosecutes this appeal from that judgment. The information charges that in Jackson county, May 27, 1924, the defendants "did then and there, w...
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The plaintiff is the trustee in bankruptcy of the estate of one Hexom. W.W. Palmer is a referee in bankruptcy, residing at Miles City. Upon the purchase of merchandise of the bankrupt estate, the purchaser, instead of transmitting the sale price, $600, to the trustee at Billings, paid it to the referee at Miles City. The referee, Mr. Palmer, desiring to remit the money to the plaintiff, went to th...
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This is an action by plaintiff as Superintendent of Banks of the State of Oregon to recover upon a negotiable promissory note of which the defendant Isabelle R. Heseltine and her deceased husband were makers. The note was made payable to the order of the First State & Savings Bank of Klamath Falls, Oregon, which bank has since become insolvent. By law the Superintendent of Banks is charged with...
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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 471 AFFIRMED. This is an action by plaintiff, as lessee, to recover damages from a lessor for failure to deliver possession of a certain farm in Washington County, under the terms of a written lease. It is the third time that the case has been here on appeal....
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The complaint alleges two causes of action: one upon a promissory note and the second to recover the reasonable value of services rendered. Defendant, by cross-bill, sought to enjoin the prosecution of the action at law for the reason that the matters referred to in the complaint arose out of a *652 partnership relation in which there has been no accounting. The trial court, after hearing, foun...
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*351The opinion of the court was delivered by This case is here on rehearing. It was decided in November, 1926 (121 Kan. 802, 257 Pac. 337). The six members of the court sitting were divided, three to three, on some of the questions presented, and no decision was reached on those questions. A rehearing was granted and the case was reargued in March of this year. Before a consultation could be had...
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The opinion of the court was delivered by In a motion for a rehearing appellant complains that his defense of fraud was insufficiently treated in our opinion. That defense was unavailing because he did not take timely steps to repudiate the alleged fraudulent transaction. He acquired the over-valued Wyoming lands and a mortgage on Nebraska property in one transaction, one bargain. He did not resci...
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One Harry Rush was charged in the justice court of Aberdeen precinct, Grays Harbor county, Washington, with operating an automobile without having a license so to do. A warrant of arrest was issued, the defendant was apprehended and appeared before the justice court, entered a plea of guilty, and was by the justice sentenced to pay a fine of one hundred dollars and costs, and to imprisonment in th...
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Appellant brought suit, as the personal representative of one E.A. Baldwin, deceased, to obtain a construction of and to establish certain rights under two written contracts made by her testator in his lifetime. From a judgment adverse to her claim, except as to a minor matter, she has appealed. It appears that Baldwin, in his lifetime, was the owner of a certain one hundred and sixty acre tract o...
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Plaintiff brought action on a promissory note, asking for the recovery of seven hundred dollars, costs, and attorney's fees. Defendants answered, alleging that the promissory note was given as the balance of the purchase price of a boat; and by way of affirmative defense, alleged that the plaintiff had represented, warranted, and guaranteed that the boat and hull were seaworthy and in first class ...
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This is an auto collision case. The accident occurred within the intersection of Broad and Harrison streets, in the city of Seattle. Both trucks were quite badly damaged, the plaintiff placing his damages at $1,172.50, and the defendant claiming $686; and as is usual in cases of this kind, each party *Page 293 insisted that the other was at fault. The cause was submitted to the court with a jury,...
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Respondent, at the present time a corporation, had, for a number of years prior to the commencement of this action, been operating an electric shop in the city of Tacoma. A portion of the time, the operation had been carried on by a partnership operating under the trade name "Bluebird Electric Shop"; a portion of the time, it was operated by a sole trader under that name, and about a year prior to...
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The respondent, a married man, was living with his family on 10th avenue, in the city of Seattle, for some time prior to November 2, 1925. About that time, because of marital difficulties which later culminated in a divorce suit brought by his wife, he left the family residence and registered at the Dorchester Hotel, run by appellants. He was a butcher by trade, and at the time was employed by the...
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This is an action to recover for the alleged wrongful death of the infant child of the plaintiffs. Trial was had to a jury, which rendered a verdict for the defendants. A motion for a new trial was interposed and denied. Judgment of dismissal was entered on the verdict, and the plaintiffs have appealed. The sole question raised here is: Did the trial court err in refusing to grant a new trial on t...
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Respondents own, and occupy as a residence, property across the street from and directly facing the electric substation of the appellant city, situated on block 103, Second School Land Addition to Tacoma. Transmission wires bring to this substation *Page 352 a voltage of one hundred and ten thousand, where it is stepped down by means of transformers for distribution and use in the city. It is con...
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Claus Albert Clausen died testate April 3, 1925, a resident of the county of Marin, this state. He was unmarried and left neither children, nor father, nor mother surviving him. He left as his sole heirs at law seven brothers, three sisters, and four children of a deceased sister and five children of a deceased brother. By his will he bequeathed and devised to his brothers and sisters and to the c...
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Proceeding brought to review and annul an award made by the Industrial Accident Commission in favor of Louisa Mosteiro for the death of her husband, Segismundo Mosteiro, who was killed by the falling walls of the San Marcos building in the city of Santa Barbara. Segismundo Mosteiro was employed as a janitor in said building. The walls of the building collapsed during an earthquake which occurred i...
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THE COURT. A hearing of this proceeding by this court was granted for the purpose of further considering it in connection with the case ofLondon Guarantee Accident Co. v. Industrial Acc. Com.,ante, p. 239 [259 P. 1096], in which we have this day filed an opinion affirming the award. We are satisfied with the opinion written by Mr. Presiding Justice Works when this proceeding was before the distri...
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This appeal is from an order made after final judgment quashing the levy of execution upon the judgment obtained by the plaintiff against the municipality, and which execution had been attempted to be levied on certain real estate of the municipality, which property had, in other years, been used for the purposes of a public jail, but which, having ceased to be used for that specific purpose, was,...
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The respondents move the court for an order requiring the clerk of the superior court of the state of California, in and for the county of Stanislaus, to file herein a supplementary clerk’s transcript setting forth certain proceedings in the above-entitled action occurring in said court subsequent to the taking of said appeal and the preparation and filing of the transcript on appeal herein, and ...
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This is an appeal from an order of the court granting a new trial after verdict of the jury for damages for personal injuries. The facts alleged by plaintiffs were that Julia H. O'Brien, one of the plaintiffs, went to the drug-store of defendant and after making a purchase attempted to enter the ladies' toilet, but finding it occupied was directed by the porter to the "Gents' Toilet," situated at ...
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Plaintiff brought this action against defendant for the purpose of obtaining judgment that the defendant, her brother, holds in trust for her an undivided one-fourth interest in the southeast quarter of the southeast quarter of section 13, township 3 north, range 21 west, San Bernardino base and meridian, containing forty *Page 658 acres of land, and for an accounting of all sums received by him ...
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Plaintiff had judgment in the sum of $8,625 upon a certain policy of insurance covering costs of *Page 544 the production of a crop of barley belonging to the plaintiff and insured by the defendant. From this judgment the defendant appeals. The transcript shows that on or about the first day of March, 1921, the plaintiff applied to the defendant for insurance in the sum of $20,700 on 1725 acres o...
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Action for money had and received. The complaint alleges that on or about the fifteenth day of March, 1923, defendant collected of and from W.F. Steffin and R.B. Steffin for the use and benefit of said plaintiffs the sum of $1,490, then owing by the said Steffins to plaintiffs, which sum defendant agreed to repay on request, but that he failed so to do. Defendant denied these allegations and as a ...
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This is an appeal by the defendant from a judgment in favor of plaintiff adjudging plaintiff the owner of the exclusive right to the possession of certain lands in Kern County to prospect for and remove oil and gas therefrom and to the possession of said lands, and decreeing that defendant had not any right, title, or interest in said land and enjoining defendant from asserting any claim of owners...
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THE COURT. The defendant was charged with the murder of his wife. He was convicted of murder of the first degree and his punishment was fixed at life imprisonment. The appeal is from the judgment and the order denying a new trial. [1] The transcript on appeal was filed in this court June 16, 1927. No brief has been filed in behalf of appellant. The cause was regularly placed on the September calen...
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THE COURT. The defendant was convicted in the superior court of Stanislaus County of a felony, to wit, the crime of assault with a deadly weapon. [1] The transcript on appeal was filed in this court May 31, 1927. No brief has been filed in behalf of appellant. The cause was regularly placed on the September calendar for oral argument. No appearance was made for appellant at the time the case was c...
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MEMORANDUM CASE. THE COURT. The indictment charged that the defendant, being an unnaturalized foreign-born person, had possession of a pistol capable of being concealed upon his person. He was convicted and his motion for a new trial was denied. This appeal is from the judgment and the order denying a new trial. [1] The state of the evidence and the grounds urged for a reve...
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