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All Reporters → p → Volume 282

Opinions in p Volume 282

OPINION OF THE COURT Appellants, plaintiffs in the lower court, filed their amended petition for an injunction to restrain *Page 348 the defendants from selling or disposing of any bonds, debentures, or other evidence of indebtedness or performing any other act that would adversely affect the property and rights of plaintiffs, under the authority contained in the New Mex...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 505 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 506 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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This is an appeal by the plaintiff from an order granting a new trial after a verdict and judgment in favor of plaintiff for $12,000. The plaintiff was the step-granddaughter of defendant's decedent. Plaintiff lived in the home of decedent for over eight years prior to the death of the latter. During this period of time she was employed outside the home during the day for a considerable period, an...
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The plaintiff filed a com- plaint to recover the balance of an- account for goods, wares and merchandise sold and delivered] alleging the existence of a copartnership between the defendants. An agreement was introduced in evidence dated October 27, 1923, which it is conceded establishes the fact that the defendants did enter into a partnership undertaking on that date. On this basis, and after ...
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This is a motion to dismiss an appeal. The respondent filed in the Superior Court of San Joaquin County a petition for a writ of prohibition asking that the appellant, Board of Dental Examiners of the State of California, be restrained from proceeding to investigate certain charges of alleged misconduct on the part of respondent in the practice of dentistry. Upon the filing of this petition a temp...
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This case now comes before the court upon hearing granted after the court had entered an order denying the application for the writ. On both hearings the cause was heard upon notice, and upon demurrer to the petition, and upon the petition and the answer of respondents. The opinion which accompanied said former order reads as follows: "There is pending in the Superior Court an action, number 273-3...
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This is an appeal on the part of certain defendants from a decree foreclosing a mortgage. [1] In filing an amended complaint the names of Paul G. Moorhead and wife were eliminated and they were abandoned as defendants. They, however, voluntarily appeared and answered without securing permission of the court. On motion duly made their answer was stricken from the record and the action dismissed as ...
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The petitioner applied to be appointed guardian of Leon Principal, Jr., a minor. Notice of the application was served on the father of the minor and a hearing was had before the trial court. The court made an order granting the petition, and from that order the father has appealed and has brought up a typewritten record. The parents were married October 28, 1922. They were divorced by a final decr...
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Under the will of Edward D. Metcalf, deceased, the American Genetic Association, of Washington, D.C., is entitled to an interest upon which the Inheritance Tax Commissioner assessed a tax of some $7500. On appeal to the District Court the tax was confirmed and ordered paid. The executors and the interested beneficiary bring the case here by proceeding in error. The sole question is whether this te...
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On rehearing the original opinion is withdrawn and this one substituted. In 1921 the owner of section 11 and the northwest quarter of section 14, township 1 south, range 24 east, for a valuable *Page 61 consideration, made, executed and delivered to relator a mortgage covering the whole of the lands described. The mortgage was duly recorded, and ever since has been, and now is, a lien upon the pr...
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By decree the existence of a partnership between the plaintiff and the defendant in the conduct of sheep raising having been determined (Miles v. Miles, 76 Mont. 375, 247 P. 328) on the basis of a two-fifths interest in the plaintiff and a three-fifths interest in the defendant, the matter of an accounting between the partners was referred to a referee appointed by the court. The partnership conti...
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Guy Amish, hereinafter called plaintiff, brought this suit against the City of Phoenix, a municipal corporation, and Pacific Construction Company, a corporation, hereinafter called defendants, to enjoin the proposed improvement of Sheridan Street. The facts were stipulated in the lower court and a judgment was rendered there in favor of defendants, whereupon plaintiff brought the matter before us ...
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The plaintiff insurance company commenced this action in the superior court for Thurston county seeking a judgment setting aside an order of the defendant Fishback, as insurance commissioner of the state of Washington, reading as follows: *Page 271 "July 21, 1928 "Continental Insurance Company, "New York, N.Y., "Gentlemen: Whereas it is my opinion that the Continental Insurance Company has precip...
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The first of the two counts of the information in this case charges the four defendants with being jointists. By the second count, the defendants Brames and Larigas are charged with a prior conviction of unlawful possession of intoxicating liquor. On the first trial, the jury could not agree upon a verdict. Larigas failed to appear for the second trial, and his bond was forfeited. The second trial...
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The plaintiff, Pozar, seeks recovery for personal injuries to himself and damages to his Ford sedan automobile, claimed as the result of the negligent operation of an automobile truck owned by the defendant Blankenship while in charge of the defendant Strong, his employee. Trial upon the merits in the superior court for Lewis county, sitting with a jury, resulted in a verdict awarding to Pozar rec...
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There are here presented in behalf of appellant, Schafer, in one paper, what are, in effect, four motions looking to a hearing of his appeal in this court on a later date than November 13, 1929, at which time it is set down for such hearing, and looking to bringing into the record in the meantime some additional matters. The record now before us shows the following: On September 18, 1928, appellan...
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Defendants Spencer, being the owners of a subdivision of land in the city of Seattle known as Jefferson Park, employed defendant Clarke, a licensed real estate broker, for the purpose of finding purchasers for the lots which made up the addition, Mr. Clarke's actual authority being limited to obtaining purchasers for the lots which defendants Spencer were proposing to sell. Defendant A.P. Casey wa...
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This action was brought to recover the amount of a savings account which the defendant refused to pay over to the plaintiffs. The answer contained certain admissions and denials, and pleaded an affirmative defense. The cause was tried to the court without a jury, and resulted in findings of fact from which the court concluded that no recovery could be had. Judgment was entered dismissing the actio...
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The appellant, as petitioner, filed its petition in the court below, asking for a review of certain rulings of the insurance commissioner, alleging, in substance, as follows: That it is a corporation, organized under the laws of the state of Missouri, authorized to engage in the insurance business, and has been so engaged since December, 1911; that on May 24, 1912, it complied with all of the laws...
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This is an action to recover upon a promissory note for the sum of $1,000, the execution of which was admitted. Special defenses were presented, and at the close of the defendants' evidence, the trial court directed a verdict in favor of the plaintiff for the full amount demanded. From a judgment on the directed verdict, the defendants have appealed. It appears that, on December 1, 1924, the parti...
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On June 6, 1929, complaint was filed before John B. Wright, a justice of the peace of Seattle precinct, charging Ed Brown with the crime of having intoxicating liquor in possession with intent to sell. Defendant gave bail and was released from custody pending trial, which was set for June 18, 1929. On that date the defendant's motion for continuance to June 24, 1929, was granted. Second, third and...
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Respondent in company with a young man named Lamb was driving in a Ford car south on a north and south road which intersected an east and west road on which latter road appellant Tonkin was driving west in a Dodge automobile. Along the side of both highways were high grasses and weeds which obstructed the view and prevented both drivers from seeing the other prior to their entry into the intersect...
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Plaintiff brought this action to recover on a promissory note. Defendant admitted the execution of the note but plead a want of consideration. As a further affirmative defense, defendant alleged that in January, 1920, *Page 367 he had entered into an agreement with Piowaty and Sons of Chicago, through their local agent, the plaintiff, to sell to the Chicago firm his entire crop of potatoes for th...
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For many years prior to October 11, 1926, two highway districts lay adjoining each other in Jefferson county: Fremont County Highway District No. 1 (hereinafter referred to as Fremont District), and Camas-Monteview Highway District (hereinafter referred to as Camas-Monteview District). On that day, certain qualified residents of a part of the Fremont District adjoining the Camas-Monteview District...
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Plaintiff brought an action against defendants upon a contract for the sale of certain capital stock of *Page 372 Times Printing Publishing Company, Limited, alleging that defendants, as part of the purchase price of said capital stock, assumed and agreed to repay plaintiff $3,000, borrowed by him to pay for a car of paper used by said Times Printing Publishing Company, Limited, of which sum $2...
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This action was brought by the respondents, Amanda B. Smith and Miss Ludell C. Smith, her daughter, in the district court of Elmore county, to recover from the appellant, Independent School District No. 26J of Elmore county, $1700 as the purchase price for a certain tract of land sold by the respondents to the district for a schoolhouse site. By stipulation of counsel and the order of the court th...
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On the eighteenth day of November, 1925, respondents executed and delivered to the Brenard Manufacturing Company six promissory notes for the aggregate sum of $305, falling due in from two to seven months respectively. In the complaint it is alleged that before any of the notes became due, the Brenard Manufacturing Company sold and assigned the same to appellant, who, at the time of the beginning ...
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Hilda Skinner, widow and administratrix of the estate of R.R. Skinner, deceased, filed her final account and petition for distribution in the probate court of Jefferson county. Objections to said petitions were *Page 290 filed by E.G. Skinner and Sarah Skinner, deceased's father and mother, who claimed that certain of the estate consisted of separate property in which as heirs they were entitled ...
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Respondent, a practical miner and prospector, owned certain mining claims and negotiated with appellant Niday, an attorney at law, looking to appellant Niday becoming interested with respondent in their development and sale. As a result of these negotiations, appellant Niday, as attorney for respondent, organized a corporation with a capital stock of 100,000 shares, three being originally issued, ...
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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 337 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 338 Sam Stevens and Anna L. Stevens, his wife, were jointly informed against for the crime of obtaining money unde...
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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 125 Testimony was offered by the defendant showing that at the time of the trial plaintiff held $24,000 in cash from the collateral and the defendant endeavored to produce additional evidence to show payment. The court, however, struck out the evidence showin...
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This case is here on a second appeal. See Traders Compress Company v. Precure, 107 Okla. 191, 231 P. 516. For convenience, the parties to this appeal will be referred to as they appeared in the court below. The plaintiff, O.K. Precure, was the owner of seven bales of cotton which he had stored with the Compress Company, and said cotton, together with 9,000 additional bales, while stored in the com...
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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 316 AFFIRMED. REHEARING DENIED. The defendant was indicted under § 1950, O.L., for the crime of larceny of livestock and upon the trial was found guilty; from the resulting judgment he appeals and assigns for our consideration fifteen alleged errors. Since ma...
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The defendant Port of Port Orford appeals from a decree enjoining it from selling or conveying certain dock and wharfage property to the Inman Lumber and Development company pursuant to the terms of a written contract. The case is submitted *Page 159 solely on the brief of appellant, although it involves principles of grave importance to the public, if not the plaintiffs. In many jurisdictions th...
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AFFIRMED. June 27, 1928, the plaintiff filed her complaint in this suit praying for a decree of divorce based upon charges of cruel and inhuman treatment; she alleged that the parties have no children and that they "have settled their property rights out of court." Proper service was had on that day upon the defendant and the district attorney. June 28, 1928, the defendant filed a demurrer which w...
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We shall first consider briefly the locus of the accident as detailed by the plaintiff in *Page 149 connection with the actual physical facts which can not be gainsaid. On the evening of the accident Kenneth Liebhart and Mr. Ford, both residing in the vicinity, were taking plaintiff and another young lady, Miss Sweaney, for a pleasure drive in Liebhart's Ford touring car, 1924 model, equipped, as...
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In Banc. Appellants move to strike respondent's additional abstract of record from the files for the reason that it contains only the opinion of the judge of the trial court together with findings of fact and conclusions of law. Section 405, Or. L., as amended by chapter 134, General Laws of Oregon for 1927, provides that: "* * * findings of fact and conclusions of law shall be separate from the d...
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The plaintiff alleged for his cause of action against the defendants: (a) That the plaintiff was walking along a pathway close to the track of the defendant which was used by members of the public as a passageway over the premises of the defendant with the knowledge and acquiescence of the latter. (b) That the plaintiff traveled along the pathway on the premises of the defendant to a point where i...
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An alternative writ of prohibition was issued out of this court May 15, 1928, upon application of petitioner. Its purpose was to restrain the respondent, as district judge, from enforcing a temporary restraining order dated April 17, 1928, and a judgment announced May 12, 1928. It appeared from the petition presented to us that Phillip Ware had assumed the office of clerk of school district No. 50...
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The land in controversy was allotted to Sandy Gray, a full-blood Creek Indian, who died unmarried, intestate, and without issue on July 16, 1905, and was then residing within the territory now composing Okmulgee county, Okla. Belle Connor, nee Gray, Jane L. Gray, and H.M. Ledbetter, plaintiffs in error, brought suit against Wright Thornburgh, an incompetent, and Thomas G. Thornburgh, guardian of W...
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This is an action by independent school district No. 3, of the town of Hickory, Murray county, as plaintiff, against Robert F. Buchanan and American Surety Company, as defendants, on the official bonds of Buchanan given by him as treasurer of Murray county, to recover funds belonging to the school district which plaintiff alleged were paid out and disbursed unlawfully and without authority of law ...
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This is an appeal from a judgment holding void section 12 of ordinance No, 201, city of Drumright, and enjoining the enforcement thereof. Said section of said ordinance is as follows: "Any person, firm or corporation, either as principal or agent, who shall own or manage any opera house, or picture show within the limits of the city of Drumright, shall pay a license therefor, the sum of $100 per y...
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The parties here are in the same relative position as in the trial court. On November 29, 1916, plaintiff obtained a judgment in the district court of Texas county against W.T. Atkins and Mrs. W.T. Atkins, and another, for the title and possession of a certain quarter section of land in Texas county. Defendants in that action appealed to the Supreme Court. The trial court entered an order therein ...
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This is an appeal from a judgment of the district court of Wagoner county denying certain injunctive or equitable relief prayed for by the plaintiffs W. H. Darnell et al., against Jennie Higgins, county superintendent of public instruction of Wagoner county, et al. The facts leading up to the judgment appealed from and relating to prior proceedings in the matter are, in substance: On August 6, 192...
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Charles B. Longeor filed this suit in the justice of the peace court in Garfield county against the Commerce Trust Company to recover $150 alleged to have been earned as a broker's commission in securing a customer to whom the Commerce Trust Company made a loan. Longcor, herein called plaintiff, prevailed in the justice of the peace court, and the trust company, herein called the defendant, appeal...
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This is an original proceeding in this court by the petitioner, May Gregory, to set aside and vacate an order of the State Industrial Commission in favor of the respondents, Oklahoma Operating Company, a corporation, D.B.A. King's Laundry, and Casualty Reciprocal Exchange, a corporation, wherein the petition was denied compensation under the Workmen's Compensation Law. The Industrial Commission, a...
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This is an action by Mrs. Joseph Blair against the United Brotherhood of Maintenance of Way Employees Railway Shop Laborers, commenced in a justice *Page 29 court of Creek county, in which the plaintiff by her bill of particulars, in substance, alleged: That Joe Blair, her husband, was a member of said brotherhood in good standing at the time of his death on April 7, 1922; that because of his me...
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The State Industrial Commission found that C.L. Berger, on January 15, 1927, was engaged in the operation of a hazardous industry and that claimant, Orland Reynolds, was employed and engaged in the performance of manual labor incident thereto. That, arising out of and in the course of his employment, claimant Reynolds on said date sustained an accidental personal injury as a result of which he was...
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Green Kirk, defendant in error herein and plaintiff below, brought this action against Curtis Sanders, plaintiff in error herein and defendant below, to cancel what is termed a mineral deed, purporting to convey from the plaintiff to the defendant an undivided one-half interest in the oil and gas and other minerals in and under 80 acres of land in Pottawatomie county, Okla. The plaintiff alleges t...
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This is a suit on a promissory note originally brought in the district court of Oklahoma county by the First National Bank in Bartlesville against S.E. Bell to recover the sum of $7,904.05, with interest thereon at 8 per cent. from the 1st day of September, 1922, and 10 per cent. attorney's fee. The note sued on bears date of September 1, 1922, and, omitting the date line, is as follows: "On deman...
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This is an attempt to appeal from an order of the district court of McCurtain county dismissing plaintiffs' first amended petition. The order appealed from was made on motion of the defendants based upon the ground that the demurrer had been sustained to plaintiffs' petition, and the plaintiffs having elected to plead further, the amended petition failed to set out any new grounds for relief. The ...
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The parties appear herein as they did in the district court and they will be referred to as plaintiffs and defendants. The issues in the trial court, as stated by plaintiffs in their brief, were as follows: "(1) Whether the string of drilling tools contributed by plaintiffs and the string of drilling tools contributed by defendant became partnership property or remained the individual property of ...
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This is a replevin action instituted by John Inselman against Anna Cadwell and Bob Molar to recover possession of a red calf of the value of $30. It appears that Bob Molar had no interest in the subject of the litigation except that he was pasturing and caring for the calf for the benefit of Anna Cadwell at the time the suit was instituted. He filed no pleadings and made no defense, but the contro...
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This is an original proceeding in this court to review an order and award of the State Industrial Commission, entered on the 11th day of January, 1929. The undisputed evidence is that the claimant, Willie Fletcher, was injured in a fight with A.J. Alley, another employee and superintendent for Maney Alley, claimant's employer, while he was working in the construction of a road; that the fight aro...
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This case comes to this court on appeal from the district court of Carter county, Okla., wherein the plaintiff, Nellie Bristow, brought suit against the defendant, J.E. Bristow, for the recovery of the sum of, to wit, $3,372.50. The case was tried to a jury and resulted in a verdict and judgment in favor of the defendant. From an order overruling plaintiff's motion for new trial, plaintiff appeals...
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This action was begun by W.H. Boyd against the city of Oklahoma City and the Oklahoma Railway Company to recover damages growing out of floods on the North Canadian river in June and October, 1923. W.H. Boyd is hereinafter referred to as plaintiff, the city of Oklahoma City as defendant, and the Oklahoma Railway *Page 47 Company as codefendant. Plaintiff's petition alleged, in substance, that pri...
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The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted in the district court of Atoka county on a charge of stealing hogs, and was sentenced to imprisonment in the state penitentiary for two years. Motion for new trial was filed, considered, and overruled, exceptions saved, and the case appealed to this court. The substance of the state's testimony is as fo...
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The plaintiff in error hereinafter called the defendant, was charged by information of possession of intoxicating liquor, to wit, home brew, containing more than one-half of 1 per cent. alcohol, measured by volume, capable of being used as a beverage, with the unlawful intent then and there on the part of the said defendant to violate the prohibitory liquor laws of the state of Oklahoma, was convi...
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The plaintiff in error hereinafter referred to as the defendant, was by information charged with manufacturing spirituous liquor, to wit, whisky, contrary to the statute of the state of Oklahoma, was tried and found guilty of attempting to manufacture whisky as charged in the information, and his punishment fixed at a fine of $50 and imprisonment in the county jail of Payne county for 30 days. Fro...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $250 and confinement in the county jail for a period of 90 days. Defendant complains, first, that the court erred in overruling his motion to suppress the evidence be...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county on a charge of transporting whisky and was sentenced to pay a fine of $100 and to serve. 30 days in the county jail. The record discloses that at the time charged defendant went to the store of one Kennedy and put a pint of whisky on the shelf in a back room. Before placing the whisky the...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $100 and to serve 90 days in the county jail. *113 The record discloses that, at the time charged, one Hanna, a witness for the state, by previous arrangement with the chief of police, called defenda...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of transporting whisky, and was sentenced to serve 30 days in the county jail and to pay a fine of $50. The record discloses that at the time charged two policemen, about 2:30 in the afternoon, stopped defendant, who was driving an automobile, and one of them got in the car with him an...
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This is an original proceeding in mandamus to require the county judge of Carter county to dismiss an action for failure to give petitioner a speedy trial. Since the filing of this action, the county judge, it appears, has dismissed the action, pending in the county court of Carter county. This proceeding is therefore moot. The case is dismissed. DAVENPORT and CHAPPELL, JJ., concur. ...
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The plaintiff in error, hereinafter referred to in this opinion as the defendant, was by information charged with the unlawful possession of spirituous, fermented, malt and intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $100, and be imprisoned in the county jail for 30 days, from which judgment and sentence the defendant has appealed to this court. The testimony on behal...
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The opinion of the court was delivered by In this action plaintiff sought to enjoin the railway company from condemning a portion of his real property on the ground that the railway company sought to take the property not for its own use, but for the use of a private corporation which does not possess the right of eminent domain. After a hearing the court denied the injunction, and plaintiff has ...
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THE City and County of Denver, as it might do under its special charter powers, adopted a plan to straighten the channel of the South Platte river which flows through the city, and to erect an embankment or dike along its banks to prevent flooding of the adjacent premises. Not being able to acquire by purchase the lands necessary for the public improvement, the city instituted this action or proce...
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THIS case is before us for the second time. In MostWorshipful Prince Hall Grand Lodge v. Most WorshipfulHiram Grand Lodge, 85 Colo. 17, 273 Pac. 648, the cause was reversed and remanded for further proceedings. After it went back to the district court, an intervention was permitted on behalf of the Most worshipful Grand Lodge of Ancient, Free and Accepted Masons of Colorado, a fraternal, benevolen...
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THE plaintiff Whiles is the owner of an undivided eight-ninths interest in certain irrigated lands in Weld county by virtue of divers mesne conveyances from the Union Pacific Railroad Company. The railroad company in its deed of conveyance reserved unto itself and its grantees the minerals and coal underlying the surface of these lands and the right to enter upon the lands and to mine and remove t...
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Sometime in the year 1925, the appellant was injured, filed a claim with the department of labor and industries, his claim being allowed and certain payments made thereon, and some dispute arising between him and the department, the matter ultimately reached this court. A full and comprehensive statement of that case will be found in Cloquet v. Department of Labor andIndustries, 148 Wash. 229, 268...
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This is an action for rescission based upon fraud and false representations. On his first cause of action, the plaintiff recovered a judgment against both defendants, and on his second cause of action, he recovered against Modern Food Stores, Inc., only. Both defendants have appealed from the final judgment. The action was tried to the court sitting without a jury, and, probably because the compla...
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This action was instituted to recover for the breach of a contract to brail a fish trap in Alaska. The allegations of appellant's complaint are to the effect that appellant, the owner of a fish trap in *Page 377 Alaska, contracted with Gorman Company to fish the trap during the season of 1926. The option on the 1927 catch, included in the contract covering 1926, was assigned to the respondent. A...
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Plaintiff, a stockholder in defendant, St. Martins Mineral Springs Hotel Co., a corporation, brought this action seeking certain equitable relief to which she claimed to be entitled by reason of her ownership *Page 350 of the stock above referred to. Defendants John Wilkinson and Katherine Haines were also interested in the corporation above named, the former as a stockholder and the latter as se...
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This action was brought to recover damages for the breach of a contract. The defendant denied liability and affirmatively pleaded three defenses. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law sustaining a recovery. Judgment was entered in favor of the plaintiffs in the sum of $1,200, from which the defendant appeals. The facts are these: T...
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Early in the year 1926, A.E. Anderson, Inc., was the owner of a certain building lot in the city of Tacoma. The company planned to erect a dwelling *Page 370 house thereon, and, for the purpose of securing the necessary money to properly finance such building operations, borrowed from the College of Puget Sound six thousand dollars. Plans and specifications had been prepared, and the house was to...
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This action was brought to partition a tract of land owned by the plaintiff and the defendants as tenants in common. The defendant F.L. Green resisted the action, but said that, if anything was done, the land should be sold and the proceeds divided. The court first tried out the question as to whether the land was subject to partition, and held that it was. Thereupon three referees were appointed ...
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From a judgment in favor of plaintiff, in an action brought to recover damages for personal injuries, tried to the court, defendants appeal. Error is assigned upon the action of the superior court in appointing physicians to examine respondent, in finding appellant Jorgenson guilty of negligence, and in failing to find respondent guilty of such contributory negligence as would in law bar his recov...
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Respondent was the owner of certain property in the Puyallup valley near Tacoma, the same being berry land and containing between five and six acres. In July, 1927, appellants purchased the land under an executory contract of sale, wherein and whereby it was agreed that the deferred payments of approximately five hundred dollars a year should be made on or before October 1 of each year, beginning ...
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The defendant was found guilty by the verdict of a jury of the crime of unlawful possession of intoxicating liquor. From the judgment and sentence pronounced against him on the verdict, the defendant appeals. [1] The first question presented is, Was the evidence sufficient to sustain a conviction? The evidence discloses that the appellant operates on the Pacific highway, three miles south of Evere...
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By this action, the plaintiffs sought to recover the value of their interest in an automobile alleged to have been converted by the defendants. To the complaint, the defendants answered by certain admissions and denials and, by way of cross-complaint, sought judgment upon a promissory note executed by the plaintiffs. The cause was tried to the court and *Page 345 a jury, and resulted in a verdict...
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The appellant, Bruno Erlich, after a trial by jury, was adjudged guilty of the crime of *Page 337 maintaining a place for the unlawful sale of intoxicating liquor, and was sentenced to a term in the penitentiary. He appeals from the judgment and sentence, assigning errors which question the sufficiency of the evidence to sustain a conviction. The evidence discloses that the appellant was, at the ...
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ON REHEARING. In due time after the decision in this case, reported in151 Wn. 424, 276 P. 294, a petition for a rehearing was filed and granted. The case was reargued before the court En Banc on October 1, 1929, and upon due consideration by the court, a majority of the judges are of the opinion that the minority opinion as contained in that decision should prevail; Where...
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Appellant brought this action to invalidate and cancel a mortgage made by respondent the church to respondent savings and loan association for $14,000 upon real estate in Seattle, belonging to respondent the church, to secure an indebtedness for a loan procured by the church from the loan association on July 21, 1925. The complaint alleges that the trustees of the church corporation had not qualif...
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IN BANK. AFFIRMED. REHEARING DENIED. Defendant was convicted of the crime of statutory rape and sentenced to serve five years in the state penitentiary. Appellant assigns 18 alleged errors, which he presents in his brief under seven different heads. All of the alleged errors from the first to the fifteenth, inclusive, are based on rulings *Page 413 of the court on the admissibility of testimony. ...
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IN BANK. At the November term, 1928, of the circuit court for Wallowa county, Oregon, the defendant, Fred M. Black, was jointly indicted with one Harry Newberg, by the grand jury of said county, by which indictment they were jointly accused of murder in the second degree for the killing of one Leonard Olsen, within said county, on the 25th day of September, 1928. Each of the defendants named in th...
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Plaintiff brings this suit in the nature of an interpleader to have the rights of the creditors of the defendant A.W. Walker adjudicated and determined. Walker was engaged in the automobile business in Medford, Oregon. On February 11, 1921, nineteen second-hand automobiles, covered by standard insurance policies issued by plaintiff, were destroyed by fire. Walker, on April 7, 1921, made proofs of ...
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IN BANK. The defendant, Ernest Patrick, was jointly indicted with George B. Skinner for having, on the 16th day of January, 1929, while acting together, unlawfully in their possession a still and still worm without registering it. The defendant Patrick was convicted and sentenced, and appeals. AFFIRMED. The circumstances necessary to notice are about as follows: The sheriff of Wasco county, Oregon...
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This is an action to recover damages for injury to person and property arising out of an automobile collision. Defendant is charged with negligence (a) in operating a motor truck at a dangerous rate of speed; (b) in failing to have the truck under control; (c) in operating it on the left side of the highway; (d) in failing to keep proper lookout for traffic on the highway. In its answer defendant ...
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IN BANK. The defendant was indicted by the grand jury of Umatilla county, charged with the crime of murder in the second degree, committed as follows: "That the said Ralph Shull on the 10th day of August, 1928, in the county of Umatilla and state of Oregon then and there being, did then and there unlawfully, feloniously, purposely and maliciously kill one Robert Linsner by striking, stabbing, cutt...
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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 187 In Banc. This is a suit commenced by the plaintiffs for the purpose of enforcing the specific performance of an alleged contract. It is alleged that on the 5th day of December, 1914, and for a long time prior thereto, Edward Holman and Julia Holman were h...
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delivered the opinion of the court. This is an action by the plaintiff George H. Hagge against his wife, Olive Hagge, to secure a decree of *371 divorce. On the original' hearing we dismissed this writ of error on the ground that the record did not show that a final decree had been rendered. On the application of the plaintiff in error for a rehearing, our attention is directed to a recital i...
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THE plaintiff Todd is a licensed real estate broker. The defendants Thomas Ness and Emma Ness, who owned property in Colorado Springs, listed the same with Todd for sale at $2,850. Soon thereafter the plaintiff obtained a prospective purchaser, Mrs. Heath, and plaintiff took her and her husband to the property and showed it to them and introduced them to the owners. Mrs. Heath expressed herself as...
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GRACE Rausch, a minor, by her next friend sued James *Page 390 Cozian and Mary Cozian to recover damages received by being struck by defendants' automobile in December, 1924. She alleges that these injuries resulted in incurable valvular heart trouble and chronic appendicitis. On January 10, 1928, the case came on for trial before a jury. The plaintiff failed to appear and her counsel represented...
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delivered the opinion of the court. The plaintiff in error, hereafter called the defendant, was sentenced to the state penitentiary for a term of not less than one and a half years, nor more than three years, on the verdict of guilty of a second offense for the violation of the intoxicating liquor statutes. There is no dispute as to the former conviction of the defendant of unlawfully keeping a...
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THESE parties appeared in reverse order in the trial court and we hereinafter refer to them thus, or by name. Plaintiff says he sold to defendant, a butcher in Lamar, Colorado, 700 pounds of meat at 50 cents per pound, for which the latter refused to pay, and demands judgment accordingly. Defendant says he was not a purchaser, but plaintiff's agent to sell on commission, and that, through no fault...
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THESE parties appear here in the same relative position as in the trial court and we hereinafter refer to them as plaintiff and defendants, or by name. This cause is before us for the second time. Our former decision should be read as a preface to this. Plaintiff, on March 24, 1927, asked permission to appear by his next friend, Long, and sue defendants for depriving him of his property by taking ...
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ERNEST Wilkinson, hereinafter referred to as defendant, was convicted of, and sentenced for, the crime of rape. He assigns error, sues out this writ and asks for a supersedeas. The information contains two counts, the first charging rape by force, and the second, rape upon a person "incapable through unsound mind of giving legal consent," but inasmuch as the verdict returned on the first *Page 408...
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RESPONDENT, formerly an attorney of this court, was *Page 427 disbarred May 20, 1920. 69 Colo. 188, 194 P. 612. For an alleged violation of the statute in such case made and provided the Attorney General files herein his information charging contempt. Respondent answers, and petitioner moves for judgment on the pleadings. The cause is now before us on that motion. Section 6017, C. L. 1921, provid...
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THIS is a workmen's compensation case. The first named plaintiff in error is hereafter referred to as "Platt," and the other as "the Casualty Company;" the first named defendant in error as "Mrs. Reynolds," the other as "the Commission." and Mrs. Reynold's deceased husband as "Reynolds." Platt was engaged in the automobile business in Denver, Colorado, and carried its liabilities, under the act in...
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The opinion of the court was delivered by Jacob Gantz brought this action to enjoin the commissioners of Jefferson county from closing a highway and railroad crossing through his farm. The Union Pacific Railroad Company was made a party defendant. The injunction was in part granted and in part refused. Plaintiff appeals from the ruling so far as it was adverse to him, and the defendants appeal fro...
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The cross-complaint states a cause of action in equity for relief against the erroneous decree of foreclosure entered in cause No. 3,289 upon the ground of mistake or excusable neglect, and the findings of the court under the evidence not only render the judgment and decree of foreclosure entered herein erroneous, but warrant a judgment in the appellant's favor. *Page 86 By the sale of October 11...
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On December 29, 1921, plaintiff and respondent, Sparkman, as sheriff of Fremont county, at the instance of several creditors of the Hobart-Brown Co., attached certain goods and merchandise in said company's possession. The creditors having obtained judgments in the probate court some time in January following, the sheriff proceeded under the consequent executions to notice the property for sale. W...
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OPINION OF THE COURT Plaintiffs being the owners of a water plant and system, by which, under franchise, the inhabitants of defendant village were -served, contracted with the village to sell to it, the latter agreeing to buy: “All such portion of the plant now owned by party of the first part (plaintiffs) erected for the purpose of supplying water to the Village of Hot Springs, and consistin...
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Thurlow G. Stuart, hereinafter called appellant, was convicted in the superior court of Navajo county on the charge of contributory delinquency, and on March 14, 1929, was before the court for sentence. The minutes of the trial court show that he was sentenced in the following language: "No legal reason or excuse appearing it is the Judgment and sentence of the court that you Mat Stuart and that y...
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Harry Vaughn, hereinafter called defendant, was informed against for a violation of Paragraph 710, Penal Code of 1913, which reads as follows: “710. Whoever compels, or in any manner seeks to compel or coerce any employee or any person, firm, company or corporation, to purchase goods or supplies from any particular person, firm, company or corporation shall he deemed guilty of a misdemeano...
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The plaintiff, Reserve Loan Life Insurance Company, a corporation, on March 1, 1926, filed its petition in the district court of Marshall county against N.H. Simmons and his wife, Matilda E. Simmons, and sundry other parties therein named as defendants, alleging in substance: That on February 8, 1919, Simmons and wife executed and delivered to Aurelius Swanson Company, Inc., their promissory note ...
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This is an action brought by defendant in error against Paul Prince, county treasurer, plaintiff in error, to procure a writ of mandamus requiring and directing the defendant, as county treasurer, to reinstate certain paving assessments upon the tax rolls of Lincoln county. Upon an amended petition filed in the district court an alternative writ was issued. An answer was filed and the cause was tr...
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This case presents error from the superior court of Okmulgee county, state of Oklahoma, wherein the plaintiff in error was defendant below and defendants in error were plaintiffs. For convenience, the parties will be referred to as they appeared in the trial court. Plaintiffs alleged in the court below that they were heirs at law of C.F. Roach, who died April 6, 1920; that about January 10, 1916, ...
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This is an appeal from the judgment of the district court of Kay county rendered on the 18th day of January, 1929, in an action wherein plaintiff in error was defendant. The issues of fact were submitted to the jury with Claude Duval, judge of the district court of Kay county, presiding judge at the trial. As such presiding judge he rendered judgment in the cause, and made the order overruling the...
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This case presents error from the district court of Bryan county, Okla., wherein plaintiffs in error were defendants and defendant in errer was plaintiff. For convenience, the parties will be referred to as they appeared in the trial court. The Inter-State Trust Company sued Loftess Olson, Dona Olson, Boyd M. Sterrett, F.A. Sterrett, and the Atkinson-Warren Henley Company to foreclose a mortgage ...
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This is an original proceeding commenced in this court by the Maryland Casualty Company and Huston Elliott to review an order of the State Industrial Commission awarding compensation to the respondent, S.J. Kent. The respondent, Kent, while in the employ of the petitioners, Huston Elliott, was injured by a dynamite explosion, resulting in injury to both eyes. No contention is made that the accid...
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In this action the Robert. W. Hunt Company, a corporation, sued O.K. Eysenbach in the district court of Tulsa county on a promissory note. Judgment was rendered in favor of plaintiff. Defendant appeals. It is first contended by defendant that the court erred in overruling his motion for continuance. It appears that when the case was called for trial, counsel for defendant announced in open court t...
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Upon authority of Ellis v. Outler, 25 Okla. 469,108 P. 957, this cause is reversed and remanded for failure of the defendant in error to file brief as required by rule 7 of this court. Note. – See "Appeal and Error," 3 C. J. § 1607, p. 1447, n. 46....
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This is an action brought by Barbara Kemmerer against George W. Conn and Etta Conn, makers of a promissory note and a real estate mortgage, to recover a money judgment and foreclosure of said mortgage. Davis Brown, Betty Brown and Clay Brown were made parties to the action because they had become purchasers of the property after the mortgage was given and recorded. George W. Conn was deceased and ...
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The principal question for consideration in this case is whether or not the superintendent of health can recover a judgment against the county for compensation where the excise board of the county in which he is acting as such officer has neglected and failed to make an appropriation therefor; and also where the acts of said superintendent of health are without the sanction of the board of county ...
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On the first day of August, 1921, the city of Fairview, Okla., herein called defendant, entered into a written contract with Charles T. Derr, herein referred to as plaintiff, whereby plaintiff was permitted to build and construct a swimming pool and bath house in a public park owned by defendant. The contract provided that defendant should furnish plaintiff water and electricity within certain lim...
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Defendant in error, hereinafter referred to as plaintiff, commenced this action against plaintiff in error, hereinafter referred to as defendant, to recover damages alleged to have been caused by defendant setting out a fire on its oil and gas lease adjoining plaintiff's orchard, from whence the fire is alleged to have spread to plaintiff's orchard, whereby the trees on about five acres thereof we...
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On November 26, 1917, William B. Dobbs and Dora B. Dobbs, husband and wife, secured from the F.B. Collins Investment Company, a loan in the sum of $4,200. As a part and parcel of said transaction, Dobbs and wife gave their note for the amount due December 1, 1924, and also executed a real estate mortgage on 320 acres of land located in Harper county to secure the payment of the note. On or about F...
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This is an appeal from a judgment of the district court of Carter county in an action wherein the plaintiffs in error were plaintiffs and the defendants in error were defendants. The cause was submitted to the court on December 20, 1928, on an agreed statement of facts, covering all the facts submitted, filed in the cause on October 20, 1928. The cause was taken under advisement until February 15,...
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December 5, 1924, Vivian Brown, a minor, by Thomas Brown, her father and next friend, brought suit against Clyde Murphy, a minor, and his guardian, L.C. Murphy, in district court of Okfuskee county, Okla., for damages for seduction, and about a year thereafter she recovered a final judgment of $3,000. Plaintiff was represented in this litigation by Crawford Shaw, attorneys, to whom she assigned a...
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The original action, in which the judgment appealed from in this case was granted, was commenced in the district court of Cherokee county by the Myercord Company against International Specialties Company. The original petition does not appear in the record, but it was admittedly for the purpose of collecting a personal judgment against the International Specialties Company, and by amendments to th...
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This was an action by A.W. Whittenhall against the city of Tulsa for damages on account of certain personal injuries which he received in falling through the covering of a storm sewer catch basin in one of the streets of that city. The basis of the negligence was that the city, through its employees, placed and permitted a defective lid to remain on the catch basin opening. The defect consisted in...
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This is a suit by Junior Duncan, a minor, as plaintiff, brought by Rose Duncan, his mother and next friend, against the Southwest Missouri Railroad Company, as defendant, for personal injuries received when defendant's electric interurban car collided with an automobile in which plaintiff was riding at a grade crossing about one-half mile southeast of Galena in the state of Kansas. Plaintiff alleg...
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Rose Duncan brought this suit in the district court of Ottawa county, Okla., against the Southwest Missouri Railroad Company to recover damages for personal injuries received at a highway crossing near Galena in the state of Kansas on the 29th day of June, 1926. On the trial, a verdict and judgment were rendered in her favor, and the defendant has appealed. This is a companion case to that of Sout...
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This action was commenced in the district court of Oklahoma county by plaintiff in error, as plaintiff below, against E.B. Bonaparte, county treasurer, Oklahoma county, Okla., as defendant. The parties hold the same position in this court as they did in the trial court, and will be here referred to as plaintiff and defendant. The action was instituted on the 18th day of May, 1927, by the filing of...
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The defendant in error was the plaintiff in the trial court and will be referred to as plaintiff herein. The plaintiffs in error were defendants in the trial court and will be referred to as defendants herein. Hoxie Anderson, one of the defendants in the trial court, was served by publication, but did not appear in the trial court and is not a party to this appeal. He will be referred to herein as...
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This is an appeal from a judgment of the district court of Creek county rendered in an action wherein plaintiff in error was plaintiff. The parties will be referred to herein as they appeared in the trial court. This cause was here on a former appeal, where, in an opinion filed it is shown the plaintiff sought to recover money claimed to have been paid by the plaintiff to the defendant under a mis...
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Advance-Rumely Thresher Company, a corporation, commenced this action against R.C. Murrell to recover the sum of $1,325.29 alleged to be the balance due on a written contract or order for the sale of a carload of lubricating and cylinder oils. The contract was attached to the petition as an exhibit and, omitting a description of the items ordered, is as follows: "Advance-Rumely Thresher Co., Inc. ...
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This is an appeal from the district court of Tulsa county, Okla., wherein the defendant in error, H.H. Tennis, a minor, by T.M. Tennis, his next friend and guardian, plaintiff below, sued plaintiffs in error, Geo. L. Miller, Zack T. Miller, and Geo. L. Miller, Zack T. Miller, Joseph C. Miller, Jr., and Geo. W. Miller, executors of the estate of Joseph C. Miller, deceased, as individuals and partne...
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Petitioner seeks release from imprisonment in the city jail in the city of Shawnee. His restraint is the result of his being charged and held in custody pending trial for having violated the provisions of ordinance No. 342, as amended by ordinance No. 365, and ordinance No. 424, of said city, which by article 6 thereof provides for a tax of $25 upon the occupation of a building contractor within s...
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E.E. Clark and Cline Stanley, a copartnership composed of R.W. Cline and J.W. Stanley, brought this action against O.W. Seay, Clyde Seay, Wilmer Seay, and the Farmers National Bank of Waurika, Okla., to recover the sum of $2,000, alleged to be due them as a broker's commission for services rendered in securing a purchaser for an oil and gas lease on certain lands belonging to the defendants Seay....
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This is an original action filed in this court on August 9, 1929, to review an award of State Industrial Commission made and entered on the 20th day of July, 1929, wherein the respondent C.H. Gillespie was awarded compensation by the State Industrial Commission. Respondents have filed in this court a motion to dismiss this cause for the reason that petitioners failed to comply with section 7297, C...
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This case comes to this court on appeal from the district court of Oklahoma county, Okla. Defendant in error, Mary Walker, was plaintiff in the lower court, and plaintiff in error, Robert S. Walker, was defendant in the lower court, and the parties will hereinafter be referred to as they appeared below. This is an action for separate maintenance, brought by plaintiff, Mary Walker, against her husb...
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This was an action by Johnnie Stubblefield, defendant in error and plaintiff in the court below, against F. M. Lind, defendant and plaintiff in error herein, to quiet title and cancel a certain tax deed which defendant had obtained and placed on plaintiff's land. This appeal is from an order overruling defendant's demurrer to the petition, and judgment rendered on the petition. *Page 281 The plai...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a. charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $300 and to be confined in the county jail for 90 days. The state procured a search warrant upon an affidavit insufficient upon its face to authorize the issuance of the warrant or the search an...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of arson, and his punishment *166 fixed at confinement in the state penitentiary for a term of one year. From the judgment of conviction, defendant appealed to this court, which appeal was perfected May 6, 1929. Since the appeal and before final submission of the cause, the ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days. Defendant contends that the search warrant was illegal, because not in proper form, and that the search and seizure was therefore withou...
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The plaintiff in error hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of having possession of intoxicating *Page 162 liquor, and his punishment fixed at a fine of $100 and to be confined in the county jail for 30 days. In the trial of the case the state offered in evidence the affidavit upon which the search warrant was obtained, to which the defen...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance. The jury found the defendant A. C. Handley guilty as charged in the information, and fixed his punishment at a fine of $300 and confinement in the county jail for a period of 90 days. The same jury at the same time returned another verdict in ...
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The plaintiff in error, hereinafter called the defendant, was by information charged with knowingly, willfully, and unlawfully having in his possession, mash, wort, and wash, which said mash, wort, or wash was suitable for making corn whisky; was sentenced to pay a fine of $50 and costs, and be imprisoned in the county jail for a term of 30 days; from which judgment and sentence the defendant has ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $200 and to be confined in the county jail for a period of 30 days. The evidence of the state is that there was a dance being held at the section house in Snyder; that witness, who was an officer, s...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of the crime of burglary and was sentenced to serve a term of four years' imprisonment in the state penitentiary. The information charged the burglarizing of the house of one Lucy Eisiminger by unlocking an outer door thereof and entering therein in the daytime with intent to steal personal prop...
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This action was brought by the respondent to recover a commission of ten thousand dollars claimed to be due by reason of services in effecting an exchange for other property of certain real estate belonging to the appellant. From a judgment allowing the commission, this appeal is prosecuted. *Page 397 Respondent bases his right of action on the following letter: "MARLBOROUGH HOUSE "Boren Avenue a...
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Appeal from an order denying motion for a new trial. Plaintiff (respondent) had judgment November 2, 1927. Defendants filed notice of intention to move for new trial November 12, 1927. Although the record filed April 20, 1929, does not so show, time for filing affidavits was extended to January 11, 1928, when appellants' affidavits were filed. Respondent filed one affidavit June 6, 1928, and the m...
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Plaintiffs sued for a writ of mandate to compel the district court, wherein was pending an action between Don C. Richards and Samuel W. Jarvis et al., to strike a certain portion of a judgment there entered, as follows: "That there should be stricken from the judgment finally entered by the court below, a copy of which is marked *Page 250 'Exhibit B' the following words appearing in the second pa...
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The supreme court having jurisdiction to review on appeal decisions of the district courts in habeas corpus proceedings (In re Jennings, 46 Idaho 142, 267 P. 227) will not exercise its power (Const., art. 5, sec. 9; C. S., sec. 9275) to grant an original writ of habeas corpus except in extraordinary cases. (In re Burnette, 73 Kan. 609, 85 P. 575; Ex parteShaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex par...
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OPINION OF THE COURT This is an action on a promissory note. Defendants admitted its execution, but denied liability. They pleaded affirmatively that the consideration of the note was the purchase from plaintiff of a carbide lighting and heating plant to be installed in their residence and to provide light therefor, and that, after installation, the plant had proved entir...
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OPINION OF THE COURT This is an action wherein plaintiff (appellee) caused to be attached all the right, title, and interest of defendant (appellant) in and to "the real estate, oil-well, rig, pump equipment, oil and water storage tanks, and machinery situated upon and being the land described as," etc. The case was tried before the court and judgment entered in favor of ...
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This matter comes to us upon a petition for a writ of mandate directed to the Judge and Clerk of the Municipal Court of Los Angeles, to compel certification of statement upon appeal. [1] Petitioner was charged with vagrancy and convicted in said Municipal Court and sentenced to serve ninety days in the county jail on May 23, 1929. On the same day motion for new trial was made and denied and oral n...
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This action was brought to recover the sum of $1514.71 upon an undertaking executed by defendant for the release of an attachment levied in a case wherein appellant was plaintiff and G.V. Pettigrew Company defendant. The complaint alleged the commencement of the action by plaintiff herein against G.V. Pettigrew Company, the issuance of a writ of attachment therein and levy of the same upon moneys ...
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In the action which gives rise to this appeal, which was originally filed in the Municipal Court of the City of Los Angeles, the complaint is cast in the form of a common count alleging that the plaintiff had performed certain services "for and at the request of the defendants" and the reasonable value thereof. The title of the action, as it appears in the caption of the complaint, reads as follow...
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This is an appeal from a judgment for damages for injuries sustained by the plaintiff as a result of having been struck by a taxicab while crossing a street after leaving a street-car at an intersecting corner in Sacramento. The appellant relies chiefly upon the alleged contributory negligence of the plaintiff as a cause for reversal. The plaintiff failed to look to his right, whence the automobil...
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This is an original petition for a writ of mandate to compel the respondent, as City Clerk of the City of Riverside, to place the name of petitioner upon the *755 ballots to be used at the general municipal election, to be held in the City of Riverside on the third Tuesday of November, 1929, as a candidate for election to the office of member of the council of said city from the fourth ward the...
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The plaintiffs commenced an action to recover moneys alleged to be due under a contract of employment. The defendants answered and filed a cross-complaint. The plaintiffs answered the cross-complaint and a trial was had before the court sitting without a jury. The court made findings in favor of the defendants and from a judgment entered thereon the plaintiffs have appealed. On the sixteenth day o...
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THE COURT. An action to recover damages for deceit in which judgment was entered for the plaintiff. Defendants, who are husband and wife, own a ranch consisting of 320 acres of timber and farm land situated in Humboldt County. The plaintiff alleged that, induced by the oral promises of the defendants to convey to her for its reasonable value a lot approximately one-fourth of an acre in area which ...
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The plaintiff brought an action against the defendant to recover a broker’s commission, alleging that he produced a buyer ready and willing to buy and who offered to buy the mortgage, which defendant had offered to sell, on terms made by the defendant, and that the defendant’s offer was accepted by the buyer and he agreed to pay two per cent commission to the plaintiff upon consummation of the ...
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Several parties plaintiff filed attachment suits against defendants and levied attachments. Various labor claimants came forward, claiming a preference upon the property and funds attached. Thereafter a judgment was entered pursuant to stipulation. The stipulation was signed by the attorneys for the several parties plaintiff and by the attorneys for the defendants and also by a firm of attorneys ...
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Appeal by plaintiff Pacific Electric Railway Company from a judgment for the defendant Petroleum Midway Company, Ltd., in an action brought to recover judgment for $657, claimed by plaintiff as owing from defendant for demurrage charges on certain carloads of freight consigned to the defendant. The record fairly justifies the following brief statement of the material facts necessary to a consid...
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THE COURT. Appellant was charged by an information filed in the Superior Court of Alameda County with the violation of section 470 of the Penal Code, it being alleged that he, with one Elbert Pimental, forged a certain check, and knowingly uttered and passed the same as genuine. He was found guilty, and has appealed from the judgment of conviction and from an order denying his motion for a new tri...
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The respondent was injured by appellant's automobile while attempting to walk across a public street in the city of Los Angeles, and this is an appeal from a judgment rendered in her favor, holding that appellant was negligent, and rejecting a plea of contributory negligence. Appellant concedes that the determination of the question here presented must be governed by the evidence given on behalf o...
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This is a petition for a writ of habeas corpus. *Page 26 The petitioner was held upon two charges. Since the filing of this petition the second complaint was dismissed. We have to consider only the first proceeding. The petitioner was charged in the Justice's Court of Eureka township, Humboldt County, with the offense of having possession of intoxicating liquor. To this accusation he pleaded guil...
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This action was brought by the appellant, an Illinois corporation, engaged in a general fruit and brokerage business, against the defendant, a corporation organized under the laws of California, and engaged in the production of onions in the county of Riverside, state of California. The action was brought to recover from the defendant damages for alleged loss of profits arising from breach of cont...
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Plaintiffs prosecute this appeal from a judgment quieting the title of respondent Gregory to certain real property. The action was prosecuted by plaintiffs to remove an alleged cloud on their title to the real property involved, created by a trustee's deed to said Gregory, and to carry into effect a certain judgment in their favor, in an action wherein one Herman Eggers and others were plaintiffs ...
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The defendant was convicted of the crime of rape committed upon a girl of the age of nearly nine years. He has appealed from the judgment. The evidence, both direct and indirect, is in substantial and irreconcilable conflict. The testimony of a physician, who examined the girl a few days after the alleged act, is sufficient to show that some person committed the crime. The testimony of the girl, s...
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Plaintiff obtained a judgment and decree of foreclosure of a materialman's mechanic lien against the property of the appellants. [1] The sole contention on appeal is that the plaintiff's claim of lien is invalid because of its many faults of description of the appellants' property against which the lien is claimed. The appellants' said property is correctly described as follows: Lot five (5), bloc...
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Plaintiff obtained judgment for $1,040, which was the amount of a deposit he made with the defendants when signing and leaving with them a proposal to purchase a confectionery store belonging to T.N. Smiley. The complaint was in three counts. The court made findings in favor of plaintiff on the first and third counts. The first was a common count for money had and received, and the third was based...
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Plaintiff had judgment in the court below upon an undertaking given by defendant to release an attachment, and defendant appeals. Appellant's sole point upon appeal is that the writ of attachment to release which the undertaking was given was a nullity because, it is claimed, the clerk who issued the writ did not receive an affidavit prior to the issuance of the writ of attachment as required by s...
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Plaintiff recovered judgment for damages in this action for fraud and deceit practiced upon him by the defendants inducing him to buy twenty-five cemetery lots (called sections) for speculation at the price of $165 per lot. The measure of damages applied by the court was the difference in actual value of the property at the time this action was commenced and what it would have been worth at that t...
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The plaintiff commenced an action against the defendant to recover a judgment. The defendant answered and a trial was had before the court sitting without a jury. The trial court made findings in favor of the defendant and from a judgment entered thereon the plaintiff has appealed and has brought up a typewritten record. Heretofore, L.D. Hill and F.E. Hill, copartners, owned a tract of land in Ker...
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—In this action for damages arising out of a collision between a truck and trailer driven by defendant’s servant and an automobile driven by plaintiff, the trial court, sitting without a jury, found that the negligence of both parties proximately contributed to the collision. Prom the judgment for defendants entered upon these findings plaintiff appeals. Appellant makes only one point on appeal...
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By complaint in the usual form the respondent in this action alleged that Joseph Schlyen and Michael H. Brodsky were copartners doing business under the firm name of Palm Drug Company; that individually and in the name of the company they executed two promissory notes, payable to the plaintiff, for the amounts of which, less certain deductions, judgment was prayed. The defendant Schlyen having ans...
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The defendant was the wife of Dr. Clement Swaim, who owned a residence in Mexico City which he had been endeavoring to sell for two or three years prior to July 9, 1925. On the date mentioned the negotiations *Page 120 had reached the point where he and his wife, the defendant, signed a special power of attorney authorizing one Charles F. Pettijohn to sign and carry into effect a contract for the...
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THE COURT. An appeal by the defendant from a judgment entered in an action to recover the damage due *Page 705 to his refusal to accept and pay for certain coffee purchased by him. The appeal is presented on the judgment-roll. As grounds therefor it is contended that the title to the coffee passed to the defendant; that after his refusal to accept and pay the agreed price therefor the plaintiff, ...
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This is an action brought by appellant against respondents as makers of a promissory note dated January 14, 1922, due three years after date, in the sum of $500. A trial was had by the court, without a jury, and judgment was rendered in favor of respondents. *Page 720 The answer admits the execution of the note, pleads the statute of limitations, which plea was afterward abandoned, and sets up 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 696 The complaint contains two counts. In the first it is alleged that, pursuant to the terms of a contract between the parties, "plaintiff drilled a well to the depth of 940 feet, and that said well was drilled in a proper and skillful manner and was fully c...
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This is an appeal by the defendant, Victoria R. Greenwood, from an order denying her motion to set aside a final decree of divorce entered in her favor. The record reveals the following facts: S.J. Greenwood, the respondent, and Victoria R. Greenwood, the appellant, were formerly husband and wife. On July 29, 1922, they settled their property rights and separated. On March 4, 1924, the respondent ...
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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 44 This is an action to quiet title to certain long strips of land 10 feet wide adjoining the two sides of the 40-foot right of way of the Atchison, Topeka Santa Fe Railway Company, hereinafter called the Santa Fe. The strips of land are in Albany, Alameda C...
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It is established by the record that decedent left a large number of bills and the expenses of her last illness and burial. Said bills amount to $1,457.76. Other claims reported but not verified as prescribed by law amount to $3,750, and other claims known to plaintiff because of the public records amount to $4,100. It is claimed by defendants Mary Jane Herron and other alleged beneficiaries of sa...
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This action was begun in the district court of Seminole county by R.W. Treeman and Thomas O. Munger, doing business under the firm name and style, Treeman Munger, as plaintiffs, against J.M. Frey and Work Brothers, a copartnership composed of E.P. Work and W.K. Work, as defendants, for the possession of six horses, four sets of harness, and one wagon. Plaintiffs based their right to possession of...
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This is an action by the Oil Well Supply Company, plaintiff, against R.M. Roddie, defendant, to recover on a verified, itemized statement of account. The account is for oil well and lease equipment sold and delivered defendant and used for drilling on an oil and gas lease in Palo Pinto county, Tex. Defendant denied owing the account, and specifically pleaded that in August, 1922, he sold and trans...
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This is an action originally brought in the district court of Garvin county by Edith Parker, administratrix of the estate of John A. Johnson, deceased, against Ernest Kimberlin, C.A. Rottenberry, and S.M. Muse, to recover damages because of the death of the said John A. Johnson, alleged to have been caused by and through the negligence of defendants. The trial court *Page 217 sustained a demurrer...
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There is but one question presented by this appeal, to wit, whether or not an assessment for benefits for drainage purposes against the unrestricted allotment of an intermarried white member of the Chickasaw Tribe of Indians is legal and binding when made while the title to the allotment remains in the original allottee and within a period of 21 years from the issuance of the patent. The case was ...
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On June 15, 1925, plaintiff in error, R.G. Baugh, in the name of the state, brought suit against the defendants in error J.F. Little, J.E. Gillian, and A.N. Brown, as trustees and officers of consolidated school district No. 3, Garvin county, and against said school district, to recover the sum of $1,350, this being twice the amount of monies alleged to have been illegally paid out of the school f...
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This is an appeal from a judgment and peremptory writ of mandamus in favor of the defendant in error, who was the plaintiff below and who will be hereinafter referred to as plaintiff, against the plaintiffs in error, who were defendants below and who will be hereinafter referred to as defendants, directing and commanding them to pay the plaintiff for the construction of a hard-surfaced road locate...
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From the brief of plaintiffs in error it appears that this is a companion case to cause No. 19627, Leininger et al. v. Ward-Beekman Brooks, Inc., 139 Okla. 292, 282 P. 467, and that the facts are similar except as to the amount claimed, the date of the contract, the date of performance, location of the work, and the units of work *Page 302 performed. This case is submitted on the argument in the...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of having possession of one-half pint of whisky with the unlawful intent to barter, sell, give away, or otherwise furnish the same, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days. The evidence discloses that the chief of polic...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county upon an information charging him with the crime of unlawful possession of mash which was then and there fit and suitable for distillation of intoxicating liquor, to wit, whisky and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. The defendant c...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. The evidence of the state was that the officers saw the defendant with three women driving about the streets of Ardmore in a Pierce-Arrow coupe....
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The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Pottawatomie county on a charge of having possession of 11 gallons of beer, and were sentenced as follows: W. M. Suggs to pay a fine of $200 and be confined in the county jail for 30 days; Leo Drake to pay a fine of $100 and be confined in the county jail for 30 days; George Alexander to pay a fine of ...
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This is an original proceeding in habeas corpus. From the petition, the return, the evidence, and stipulated facts, it appears that petitioner was convicted in the district court of Canadian county on a charge of assault with intent to rape and was sentenced to serve a term of four years in the state penitentiary. He appealed from that judgment to this court and the judgment was affirmed. Halbert ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of having possession of 14 gallons of whisky, 7 gallons of alcohol, and 3 gallons of wine, and was sentenced to pay a fine of $150 and be confined in the county jail for a period of 90 days. When the state rested, the defendant demurred to the evidence as being insufficient to support ...
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The plaintiff in error was convicted in the county court of Garfield county on a charge of manufacturing a still and was sentenced to pay a fine of $500 and to serve 180 days in the county jail. Judgment was rendered on February 10, 1928, and the appeal was lodged in this court on June 13, 1928, more than 120 days after the rendition of the judgment. Under section 2808, Comp. St. 1921, the extr...
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The information charged that defendant, Eva Dugan, on or about January 14, 1927, killed and murdered one A. J. Mathis. From a verdict and judgment of conviction of first degree murder, fixing the penalty at death, and from an order overruling her motion for a new trial, she has appealed. Her first contention is that the evidence does not support the verdict. The evidence of the corpus delicti ...
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Appellants were convicted of the crime of maintaining a joint in a place known as the Lennox rooms in Cowlitz county, Washington, and sentenced accordingly. Their only assignment of error on appeal is the denial by the trial court of a new trial. The errors of the trial court urged and argued are based upon certain portions of the cross-examination by the prosecutor of appellant Miles. The te...
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This is an appeal from an order of the superior court dismissing the petition of V.A. Anderson and Betty Anderson, his wife, by which they sought to be appointed guardians of the person of Marjorie Genevieve Brenner, a minor, approximately three years of age. The facts are these: In the summer of 1926, and for some time prior thereto, Carl Brenner and Mary Brenner, his wife, were residing with Mr....
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Some time in the year 1919, probably December, respondent's manager ordered a bill of goods to be made up by appellant, a Denver concern, and shipped to the Three Rule Store at Burley May 1, 1920. The merchandise consisted of numerous items of women's dresses and aprons. Appellant was requested in a letter dated December 31, 1919, to forward a sample of each garment listed in the order, and in a l...
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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 441 Appellant was charged with and convicted of the crime of transporting intoxicating liquor. This appeal is prosecuted from the judgment, to reverse which appellant specifies numerous alleged errors. We shall consider only such thereof as are deemed necessa...
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Plaintiff brought this action upon a contract entered into compromising a certain action then pending between the parties in Twin Falls county. Defendant answered, denying the corporate existence of plaintiff, admitting the execution of the contract, and prayed rescission thereof upon the ground of fraud, material misrepresentations, etc. At the close of the testimony, defendant renewed a motion f...
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This is an action in conversion to recover the reasonable value of 954 feet of oil and gas well casing of the alleged value of $1,800. The cause was tried to the court sitting with a jury. At the conclusion of plaintiff's evidence the court sustained motions for nonsuit interposed by the several defendants and accordingly entered judgments of dismissal and for costs. The plaintiff has appealed fro...
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The order revoking letters of administration issued to appellant Jay D. Rinehart is hereby reversed with directions to the court below to so amend the order of appointment of said appellant as to provide for the issuance to him of letters of administration with the will annexed, upon compliance with the terms of said order of appointment. Appellant was appointed administrator upon the nomination o...
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This is an application for a writ of habeas corpus on behalf of Nat C. Lyford, an inmate of the state prison, committed by virtue of a judgment of conviction of the crime of grand larceny by the district court of Missoula county. The judgment followed a verdict of guilty. The petition sets forth the proceedings in the district court and also the process by which the petitioner is held. The case ha...
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Petitioners asked for a writ of mandate compelling the defendants to call a special election and submit to the electors of the City of Culver City the question of whether such municipal corporation should be consolidated with the city of Los Angeles. The petition alleged that on May 14, 1928, the petitioners, who are qualified electors in the City of Culver City, filed a petition signed by not les...
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The respondent herein moved for an order dismissing the appeal in this case upon the ground that the plaintiff and appellant had voluntarily accepted and received the benefits of the judgment and orders appealed from, and having done so cannot challenge any portion of the judgment and orders upon this appeal. The respondent also, in the event of the denial of said motion, presents certain other al...
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Plaintiffs sued for damages on a complaint charging mismanagement of the affairs of a corporation in which they were stockholders. But two of the defendants – Curry and McKannay – were served with process. Their demurrer to the complaint was sustained. An amended complaint was filed. Their demurrer to this complaint was also sustained. A second amended complaint was then filed. Their demurrer was ...
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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 102 This is an action to recover the balance due on a contract for the sale of an automobile from plaintiff to defendant. The complaint sets up a conditional sales contract reserving title in the vendor; alleges the default of the defendant in making several ...
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This appeal originally taken to the Supreme Court from a judgment of the Superior Court of Imperial County in favor of the defendant, has been transferred to this court for decision. The action was brought by the plaintiff, Valley Lumber Company, to recover damages for the destruction of a Ford automobile valued at six hundred dollars, through a collision with a train of the Southern Pacific Compa...
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The plaintiff commenced an action against the defendants to obtain the possession of a lot and the apartment house located thereon, the same being situated in San Francisco and known as the Kenilworth Apartments. He set forth his rights in two counts. The defendants answered both counts and filed a cross-complaint. The plaintiff answered the cross-complaint, but on the trial the plaintiff introduc...
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Plaintiff filed its action in the Superior Court against defendants to recover a balance due it under a contract to install an ice-box and display case and refrigerating machinery and equipment in a store being erected by the defendant, Joseph C. Kelley, as contractor, for the defendants and appellants, Tony Berardino and Rose Berardino, as owners. Appellants filed their cross-complaint against th...
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This is an appeal by plaintiffs, C.M. Holmes and Susan M. Holmes, from a judgment of nonsuit entered against them in an action for rescission. The appeal is upon the judgment-roll alone. The pleadings set forth these facts: Plaintiffs allege in their original and supplemental complaint that on January 22, 1927, they purchased from defendant Vincent O. Robarts a grocery business, store fixtures and...
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It appearing that a formal dismissal of an action pending between the parties in the Superior Court of Los Angeles County had been served, filed and entered, a formal judgment was rendered accordingly on the day set for trial, and the defendants were awarded costs and disbursements in the sum of $105. A motion to retax costs and to strike the cost bill from the files was denied, and the plaintiff...
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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 12 THE COURT. Defendant H.G. Johnson has appealed from a judgment for $2,616.66 which was recovered against him by plaintiff Yakoobian. The plaintiff alleged that appellant converted to his own use certain crops of grapes and figs on which the former held a m...
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This is an appeal from a judgment for damages for personal injuries sustained by the plaintiff Ethel Drury as a result of falling from the platform of a street-car while it was rounding a curve in the track. The evidence as to the material issues was conflicting. *Page 60 The defendant challenges certain instructions as erroneous. The plaintiff Ethel Drury was a teacher of music in the public sch...
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The plaintiffs brought this action to cancel a deed purporting to convey to the defendant city the canal, water rights and other property of the McNally Ditch Company, a mutual water company. The interveners alleged the same facts and prayed for the same relief as the plaintiffs. The defendant city, which will be referred to as the defendant and respondent, entered into a compromise agreement with...
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The plaintiffs commenced an action to recover a judgment against the defendant for money. Thereafter they filed a second amended complaint. The defendant demurred. Its demurrer was overruled and thereafter it filed an answer which, among other things, pleaded an earlier judgment as a bar. A trial was had in the trial court before the court sitting without a jury. The court made findings in favor o...
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For the sum of $780 in cash and a promissory note executed by plaintiff in favor of the defendants, *Page 18 plaintiff purchased from the defendants a leasehold interest in a furnished bungalow court. Shortly thereafter plaintiff brought an action against the defendants for damages based upon alleged false and fraudulent representations made by the defendants to plaintiff in inducing her to purch...
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The petitioner has applied for a writ of habeas corpus on the ground that he is illegally restrained of his liberty under an executive warrant issued by the Governor of this state, after a hearing, upon the demand of *Page 98 the Governor of the state of Washington for the extradition of the petitioner, who was indicted by the grand jury of the county of Grays Harbor, Washington, on five counts, ...
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Prior to the transaction which gave rise to this litigation the defendants Granville Holland and Norton H. Edwards, together with their respective wives, acquired title to a lot in the city of Beverly Hills, an undivided one-half interest therein being conveyed to each couple as joint tenants. Each of the defendants paid one-half of the purchase price of the lot, their agreement being that they wo...
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IN BANC. This is an action brought by the administratrix of the estate of William L. Sheard, deceased, against the Oregon Electric Railway company, to recover damages for the death of said decedent on account of the alleged negligent killing of deceased in a collision between the automobile truck, owned and operated by deceased, with an electric train operated by defendant. Defendant appeals from ...
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Unless there was error in the admission of some material part of the testimony above recited, it seems clear to us that there was sufficient evidence to be submitted to the jury as to defendant’s liability. The jury, and not the court, was the tribunal to weigh the value of the testimony introduced by plaintiff and of that introduced by the defendant; to contradict it or to show contributory negli...
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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 187 IN BANK. AFFIRMED. This is a suit in equity to rescind two contracts for the purchase of two lots in the city of Portland and to recover $362.50 paid thereon. The stipulated price of the two lots was $775 and $675, respectively, of which plaintiff paid at...
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This is a suit for rescission and a companion case to Sharkey v. The Burlingame Co. this day decided. The two cases were argued together and upon the same testimony. The facts are identical except as to the description of the property sold and the further fact that plaintiff did not solicit others to attend the lecture' courses. The same rules were applicable to both cases and from this it foll...
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IN BANK. AFFIRMED. This is an action by Rhoda M. McIntosh to recover damages for deceit on a real estate broker's bond executed by the defendant, N.B. Clarke, in compliance with section 9, chapter 277, General Laws of Oregon, 1925, with the Aetna Casualty Surety company, a corporation. The action was brought against both Clarke and the surety company, although Clarke was a nonresident of the stat...
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IN BANK. REVERSED. The complaint avers two causes of action in favor of the plaintiff against the estate of Willard H. Seaton upon an alleged express oral agreement for the payment of money; the first cause of action recites that in the period of time extending from December, 1910, to December 13, 1926, which was the date of the death of the deceased, the plaintiff performed services for him as ho...
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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 457 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 458 IN BANC. AFFIRMED. The defendant was indicted under the provisions of Session Laws 1923, ch. 30, § 2, p. 41, c...
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PERSONAL injury action by Mrs. Lena Hexter against Samuel Bragdon to recover damages for the injury she sustained as the result of defendant Bragdon's driving his car against her while he was driving north on Nevada avenue, and she was walking east in Cache la Poudre street, in the city of Colorado Springs; the streets intersecting at a right angle. The verdict of the jury for the plaintiff was ap...
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The opinion of the court was delivered by The action is one to recover on a promissory note. Judgment was rendered in favor of the defendant, and the plaintiff appeals. The defendant pleaded that there had been a settlement of the indebtedness evidenced by the promissory note which had been secured by a mortgage on personal property, the settlement having been effected by turning the mortgaged pro...
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The opinion of the court was delivered by This action was brought upon a fire insurance policy issued upon a dwelling house located on a farm. The policy was taken out on September 10, 1924, by the Farmers & Mechanics Bank of Osawatomie, then the owner of the farm, for a three-year period, and was destroyed by fire on February 15, 1927, about seven months before the expiration of the policy. The ...
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The opinion of the court was delivered by The action was one for an accounting. Plaintiff prevailed in part only and appeals, contending that the trial court *270erred in the allowance to defendants of an item of interest and the charging to plaintiff of one-half the allowance to the referee for his services. The facts were substantially that the plaintiff was employed by the defendants in 1925 to...
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The opinion of the court was delivered by This appeal is by the plaintiff in a compensation case from the ruling approving the finding of an advisory jury, and from the judgment rendered on such finding in favor of the defendant. Practically the only question here for review is whether there was any evidence to support the finding. Two questions were submitted to the jury, but only one was answer...
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The opinion of the court was delivered by The question involved in this case is whether a mortgagee has a right to collect and apply on the mortgage debt not yet due or in default fire insurance money on a policy taken out by the owners in addition to the one required by the mortgage, where the owners acquired title to the property since the giving .of the mortgage, by accepting a deed in which th...
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The opinion of the court was delivered by The appeal in this case is by a corporation brought into the case on request of the original defendant and from a judgment rendered against it upon a cross petition filed by the original defendant based upon a written contract, the defenses being that the contract was never performed by the party seeking to enforce it, that the condition under which it wa...
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The opinion of the court was delivered by The action was one by an insurance company to recover the proceeds of a fire insurance policy which the company was induced to pay after loss by misrepresentations regarding ownership of the burned building. C. E. Millard defaulted, judgment was rendered against him, and he appeals for the correction of error disclosed by the record. The subject of insuran...
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The opinion of the court was delivered by The defendant, Ollie Long, was a state prisoner in the city jail of Baxter Springs and in some undisclosed manner he obtained a weapon whereby he held up and robbed his jailer of a .45 Colt revolver worth $25 and effected his own escape and that of another prisoner. Sixty days later defendant was apprehended and the revolver which he had taken from the jai...
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The opinion of the court was delivered by The action was one by beneficiaries to recover on a life insurance policy issued by the American Insurance Union to Mike Srakovich. The defense was breach of warranties contained in the application. Plaintiffs recovered, and defendant appeals. On November 18, 1924, Srakovich applied to the Insurance Union for beneficial membership and for a policy of insu...
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The opinion of the court was delivered by This is an appeal from an order of the court overruling a motion to confirm a sheriff’s sale and sustaining a motion to vacate as void the judgment on which the sale was based. At the request of counsel the trial court made findings of fact and conclusions of law which tell the story of the controversy as follows: “Findings of Fact. “On January 6, 1925, p...
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The opinion of the court was delivered by The action was one to recover on an oral contract *214for the sale of a crop of horse-radish. Plaintiff prevailed, and defendant appeals. The facts, told substantially by the jury’s findings, were to the effect that the defendant Termier agreed to take plaintiff’s crop of horse-radish; that Max Wendt, son of the plaintiff, was present when the agreement b...
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The opinion of the court was delivered by The appeal presents the wail of a bootlegger who, finding himself trapped, threatened violence to his captors, then attempted to bribe them, then attempted either to suborn perjury or to inveigle one of the captors into a position which would subject him to impeachment as a witness, and then perjured himself at the trial in a pitiful effort to show he was ...
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The opinion of the court was delivered by In this action, in 1922, the defendant obtained a divorce from the plaintiff, was awarded the conditional custody of the minor children of the plaintiff and defendant, and was given alimony for the support of herself and of the children. Under section 60-1510 of the Revised Statutes that judgment has been modified at different times concerning the custody ...
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The opinion of the court was delivered by In this action the appeal is taken by the plaintiff bank from a judgment rendered against it in favor of the defendant on two promissory notes. The judgment was rendered on the first cause of action on motion of the defendant for judgment on the pleadings, and a trial was had on the second cause of action before the court which found in favor of the defend...
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The opinion of the court was delivered by The action was one for damages for demolition of plaintiff’s autotruck when he drove it against the side of defendant’s freight train standing on a highway crossing in the town of Trent, Neosho county. An objection to the introduction of evidence on the ground the petition failed to state a cause of action was sustained. Plaintiff appeals. The petition al...
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The opinion of the court was delivered by The purchaser of land at a mortgage foreclosure sale appeals from an order of the district court denying a motion to limit the period of redemption to six months instead of eighteen months. The ground of the motion was that the sale was made to satisfy a purchase-money lien, and one-third- of the purchase price of the land had not been paid. The merits of ...
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The opinion of the court was delivered by The plaintiff, as 'receiver of the insolvent State Bank of Superior, Neb., brought this action against G. W. Ackley, a former resident of Jewell county, but more recently a resident of California, to recover the sum of $3,632.55 which it was alleged the former president of the bank, Joseph E. Weir, had paid out of the bank’s funds to satisfy a mortgage on...
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This is an action by George H. Greenan Company to foreclose a mechanic's lien against an oil pipe line, a right of way and a pump station, said pipe line and right of way running across Kay county, Oklahoma. Greenan sought to recover a judgment for $24,408 against the Moore Refining Company under two written and one oral contract, one written contract executed January 8, 1924, and the other March ...
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On January 19, 1925, Billie James, plaintiff below, brought suit in equity against H.U. Bartlett, Eva M. Bartlett, Robert Oglesby, the Texas Company, a corporation, and the Title Guaranty Trust Company, of Tulsa, a corporation, defendants below. He alleged ownership of certain described real property situated in Creek county, and that the same was vacant and unoccupied; that the defendants had ta...
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This is an original proceeding to review and vacate a final order of the State Industrial Commission made on January 5, 1929, denying claim of petitioner for compensation. It is conceded that the petitioner was injured on the 9th day of March, 1928, while employed by the Roxana Petroleum Company by being accidentally struck on the left cheek bone by a forge handle. Hearings were had before the Ind...
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The parties on appeal appear in the same position as in the district court and will be referred to as plaintiff and defendant. The plaintiff brought an action against the defendant for alimony and suit money. The defendant filed an answer and cross-petition and prayed for absolute divorce from the plaintiff. Upon trial of the cause the plaintiff amended her petition and after for an absolute divor...
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This is an appeal from a judgment of the district court of McClain county rendered on the 10th day of September, 1928. The motion for new trial was overruled on the 3rd day of October, 1928, notice of appeal was given, and by order of the court the time in which to make and serve case-made was extended 60 days in addition to the time allowed by law. Thereafter, on the 28th day of November, 1928, a...
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From the brief of plaintiff in error, it appears that this was a suit upon a promissory note in the sum of $2,000, and to foreclose a real estate mortgage given as security therefor. Plaintiff alleges that she purchased from the Conservative Loan Company said note and mortgage for value before maturity and became a holder in due course. The defendants admitted the execution and delivery of the not...
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This is an original proceeding by Samuel B. Cox, as petitioner, against the State Industrial Commission, Clickner Construction Company, and Maryland Casualty Company to review a final order of the Commission refusing to reopen a case wherein the petitioner had theretofore been allowed compensation for the loss of his index finger, his second finger, and a partial loss of his ring finger on his lef...
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May 6, 1925, Vinita C. Grotkop commenced an action in the district court of Tulsa county against W.W. Stuckey, county treasurer of Tulsa county, Alfred C. Comstock, Gordon L. Smedley, and Comstock-Smedley Company, in which she sought to enjoin the issuance of a tax deed by the county treasurer to the defendants for a tract of land described as block 13 in Capitol Hill Second addition to the city o...
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This action is brought by Mary Kathryn McGlothlin, Levi W. McGlothlin, Jr., and Mattie E. McGlothlin, minors, by their mother and next friend, Mrs. Daisy McGlothlin, and by Mrs. Daisy McGlothlin in her own right, to cancel and set aside a deed given by John D. McGlothlin to 80 acres of land in Harmon county to the defendant Cordelia Garner, executed on the 13th day of November, 1918, and recorded ...
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As we view it, the only question presented by this appeal is whether or not a certain instrument in the form of a deed given by the defendants in error to the plaintiff in error J. Koenig, was an absolute deed or mortgage given for the security of money. The action was brought in the district court of Rogers county in 1927, by the defendants in error against the plaintiffs in error, for the cancel...
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In an action in the district court of Creek county, wherein the Sapulpa State Bank was plaintiff and J.S. Fulp and Beulah Fulp were defendants, judgment was rendered on the 22nd day of May, 1919, in favor of the plaintiff and against the defendants. Thereafter, on September 30, 1996, the defendants filed in said cause their motion to vacate the judgment rendered in the cause upon the grounds no su...
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Defendant in error was plaintiff, and plaintiff in error was defendant in the trial court. They will be herein referred to as in the trial court. Plaintiff commenced this action in the district court to recover for an alleged breach of contract for the purchase of certain cotton. Its claim is based upon three separate oral contracts. The first contract is alleged to have been by telephone, on or a...
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In this action the plaintiff questions the validity of an act of the Legislature of 1925 which authorizes the surrender of a municipal franchise in exchange for a revocable permit and requiring certificates of convenience and necessity and providing for the determination and issuance thereof. The act has been approved by the Governor and is now part of the law of this state unless it violates some...
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The plaintiff in error is the county attorney of Tulsa county, Okla., and appeals from a judgment rendered by the district court of that county, commanding him to prepare and file an information, charging William P. Kyne and Harold Williams with the violation of section 1938, C. O. S. 1921, to wit: "An entrance or admission fee is charged by said Tulsa Jockey Club for admission to the park or race...
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The parties here are in the same relation as in the trial court. The city of Muskogee, as an independent school district, conducts two distinct schools, one for white children, having the greater number of scholastics, the other for negro children, being the separate school under section 10569, C. O. S. 1921. The district is known as independent school district No. 20. This action is in some respe...
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This is an action originally brought in the district court of Comanche county by the state of Oklahoma, on the relation of the Commissioners of the Land Office against Nannie Selmer to recover lot 1, in block 12, McClung's addition to the city of Lawton. P.G. Fullerton was subsequently *Page 123 made a party defendant on motion of defendant Selmer. The Commissioners of the Land Office claim title...
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This appeal is from judgment sustaining a demurrer to plaintiffs' petition, and dismissing the cause of action upon plaintiffs' election to stand upon the sufficiency of the petition. The sole question presented now is whether the petition stated a cause of action. The petition follows: "In the District Court in and for Creek County, Okla., Mattie Jefferson and Clyde Jefferson, Jr., by Mattie Jeff...
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This action was commenced in the district court of Rogers county on February 24, 1926, by E.G. Wilson, against Leon Levy, J.I. Henshaw, and W.T. Jackson, defendants. The plaintiff alleged in his petition that he was the owner in fee simple of a tract of land, 35 acres, describing it, located in said county; that he acquired his title thereto in April, 1918; that the defendants claimed title to the...
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The plaintiff in error, hereinafter called defendant, and Ralph Forrester were informed against in the superior court of Custer county, Okla., for having murdered one Oakley Sturgis. There was a severance had of the two cases. This defendant was tried and found guilty of manslaughter in the first degree and his punishment fixed at imprisonment in the state penitentiary for a term of ten years. Fro...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having unlawful possession of mash, wort, and wash, and his punishment fixed at a fine of $100 and confinement in the county jail for 90 days. The state filed an information charging Tootsie Patton jointly with Guy Ervin and Charlie Clifton. The case against Guy Ervin was dismiss...
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This is an original proceeding in habeas corpus. Petitioner in substance alleges that he is restrained by the sheriff of Craig county in the county jail and that said restraint is without authority of law; that petitioner was charged with robbery by firearms before the county judge of said county, sitting as a magistrate. A preliminary examination was had, and the principal evidence against petiti...
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The plaintiff in error, John Dixon, hereinafter referred to as defendant, was convicted in the district court of Garvin county of the crime of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 7 years. This defendant was indicted jointly with his brother Roy Dixon for the murder of one Francis Pierce, which was alleged to have been c...
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The plaintiff in error, hereinafter called the defendant, was charged by information of having possession of intoxicating liquor, to wit, Choctaw beer, was convicted and sentenced to pay a fine of |250 and be imprisoned in the county jail for a period of 60 days, from which judgment and sentence the defendant has appealed. The testimony on behalf of the state tends to show that on the 22nd day ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of eight gallons of Choctaw beer, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. The defendant filed a motion to suppress the evidence obtained by a search warrant because all the material evidence in this action was ob...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of manslaughter in the first degree, and her punishment fixed at confinement in the state penitentiary for a term of four years. At the time charged, defendant, in the town of Seminole, shot and killed her husband, Charley Battles. The parties were negroes, and at the time defendant was liv...
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The plaintiffs in error, hereinafter called defendants, were prosecuted in the county court of *Page 239 Pushmataha county on information filed by the county attorney charging the violation of the game laws of the state, to wit, the killing of a deer. The jury returned its verdict finding the defendants guilty, and fixed their punishment at imprisonment in the county jail for 90 days. The evidenc...
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The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with Harry Grayson, Bob Canady, John Brown, and Martin Jiles, was tried jointly with the other defendants named, and the defendant was convicted and sentenced to pay a fine of $250 and be confined in the county jail of Oklahoma county for a period of three months, from which judgment the defendant ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of larceny of seven chickens, and his punishment fixed at a fine of $200. The defendant complains that the court erred in denying him his statutory time in which to plead. The record discloses that an amended information was filed on the 28th day of September, 1927; that defendant ...
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The plaintiff in error, C.D. Robinson, hereinafter called defendant, was convicted in the district court of Bryan county on a charge of embezzling the public funds of said county while acting in the capacity of deputy county treasurer, and was sentenced to pay a fine of $1 and to serve a term of one year's imprisonment in the state penitentiary. The judgment was rendered on the 6th day of Septembe...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county on a charge of having unlawful possession of intoxicating liquor with intent to convey the same, and their punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days for each of them. The defendants contend, first, that the information was insufficient to c...
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Lee Graham, plaintiff in error, hereinafter called defendant, was jointly charged with Otto Childs in the district court of McCurtain county, Okla., of the larceny of 1,900 feet of pine logs, the property of the Choctaw Lumber Company, of the value of $9.50. On the joint trial the county attorney, after the evidence was all in, dismissed the case as to Childs. The jury returned the verdict finding...
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The opinion of the court was delivered by The plaintiff sued to recover damages sustained by him by being arrested for having in his possession an automobile with changed engine numbers, which automobile he had purchased from the defendants. The defendants appeal from an order overruling their demurrers to the petition of the plaintiff. The allegations of the petition are that the defendant, the S...
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The opinion of the court was delivered by The plaintiff prosecuted this action to have himself declared the owner of 'an undivided one-half interest in certain real property. Judgment was rendered in favor of the defendant, and the plaintiff appeals. The action was tried by the court without a jury, and the court found “that specific performance should not be enforced, that plaintiff should take n...
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The opinion of the court was delivered by This is an action by the widow and children of Tom Barcus, deceased, for damages for his death alleged to have been caused by the negligence of the city of Coffeyville in that its fire truck, driven by its firemen, on the way to a fire collided with a car in which he was riding. Defendant’s demurrer to plaintiffs’ petition was overruled, and it has appeale...
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The opinion of the court was delivered by The action was one to recover on an accident insurance policy for' the death of plaintiff’s husband. Plaintiff prevailed, and the defendant appeals. The facts were substantially these: Plaintiff’s husband held an accident policy in the defendant company in which the plaintiff was named beneficiary. The policy provided for payment if the insured *235was kil...
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The opinion of the court was delivered by The question involved here is whether a dealer in oil-well casing was liable on an implied warranty that the casing was fit for the particular purpose for which it was sold. The dealer was held not liable, and the purchaser appeals. The facts were substantially as follows: The plaintiff, a dealer in oil-well casing and other oil-well supplies, sold to the ...
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The opinion of the court was delivered by This is an appeal from an order of the court overruling a motion for a judgment on the entire record. In order better to understand the question presented by this motion the record of the case must be considered. That portion of the record pertinent to our present inquiry may be stated as follows: The city of McPherson, desiring to build a concrete waterp...
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The opinion of the court was delivered by This is an action for the specific performance of a contract for the exchange of real property. The trial court declined to decree specific performance, but rendered a personal judgment in favor of plaintiff and against defendant under a forfeiture clause of the contract. Defendant has appealed and contends that the instru*297ment sued on as a contract ne...
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The opinion of the court was delivered by This is an action for damages to an automobile. The jury answered special questions and returned a general verdict for plaintiff. Defendants have appealed. The Mead Construction Company, a partnership, had the contract for the grading and building of culverts on an improved highway project for three or four miles east from Smith Center. They began the wor...
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The opinion of the court was delivered by This is an action to foreclose mechanics’ liens on an oil and gas mining leasehold. The question presented is whether the liens attach to casing furnished by the owner of the lease and used in the well while it was being drilled, which casing had been borrowed or rented by the lessee who had let the contract for the drilling of a well. The trial court held...
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The opinion of the court was delivered by The two above-entitled actions were, on application, consolidated and heard together on this appeal. One action brought by the Home State Bank against the defendants was a mortgage foreclosure proceeding in which two mortgages on property purchased from the mortgagors by Forrest B. Anderson, with an assumption of the mortgage debt, were foreclosed and the ...
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The opinion of the court was delivered by This was an action to recover the sum of $301.15 for electric fixtures installed in a school building in Montezuma. The controlling facts were these: In 1925 the school board of district No. 4, Gray county, set about the construction of a new schoolhouse at Montezuma. To that end they let two or more contracts to different parties, the precise number not ...
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The opinion of the court was delivered by Dawson, J.: This was an action to enjoin the sale and transfer of cemetery property belonging to an Odd Fellows lodge. The purchaser was a corporation chartered to conduct that sort of business. Plaintiffs are the owners of burial lots in Maplewood cemetery, situated near the city of Emporia. The defendant, Union lodge, No. 15, of the Independent Order of ...
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The opinion of the court was delivered by The plaintiff, the widow of Emeterio Zamora, an employee of the defendant, sued to recover damages for the death *286of her husband caused by the wrongful act of Claude Brooks, another employee of the defendant. The defendant demurred to the petition of the plaintiff. That demurrer was sustained, and the plaintiff appeals. The plaintiff alleged that Emete...
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The opinion of the court was delivered by The action in which this appeal is taken was under the declaratory-judgment statute, R. S. 60-3127, brought by the publishers of a weekly newspaper against the probate judge for the purpose of having a legal construction placed on R. S. 64-101 and 64-102, as applied to a monthly publication meeting the requirements of the law as a newspaper in which legal ...
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The opinion of the court was delivered by The defendant, William Johnson, a rural school teacher, was convicted of statutory rape upon the person of one of his pupils, Anna May McClellan, a thirteen-year-old girl. During the winter of 1923-1924 defendant was the teacher in a rural-school district not far from Girard. The prosecuting witness and her sister Gladys, who was two years older than Anna...
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The opinion of the court was delivered by This was an action for the partition of a small farm the record title of which stood in the name of the late Adelia Harriet Merwin, of Edwards county, who died intestate on February 2, 1928. The litigants are her children, two daughters and two sons. Plaintiff brought the action sounding both in ejectment and partition, and impleading her sister and two br...
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The opinion of the court was delivered by The defendant appeals from a conviction on each of two counts of an information charging him with being a persistent violator of the prohibitory liquor law. To that information he filed a motion to quash, which was denied. The defendant then filed a plea in abatement, to which the state demurred. The demurrer was by the court sustained. The plea in abateme...
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The opinion of the court was delivered by The action was one to recover damages for the alleged wrongful procuring of an injunction. The defendants prevailed, and the plaintiff appeals. The facts were substantially these: On July 9, 1923, in an action brought by the Kansas Wheat Growers Association against the plaintiff, a restraining order was issued and served on the plaintiff by which he was re...
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The opinion of the court was delivered by This action arose under the workmen's compensation law. James E. Taylor had been an employee of the Hogan Milling Company for a period of about eleven years. During his employment and on August 1, 1928, Taylor, while at work in the mill, applied for and was given permission by the foreman to go from the first to the fourth floor of the mill to pay a fello...
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The opinion of the court was delivered by This case is here on appeal taken by the plaintiff from the ruling of the trial court in sustaining a demurrer by one of the defendants to the petition and overruling the demurrer of the plaintiff to the answer of another defendant. There is also a motion to dismiss the appeal because it 'is claimed the matters involved have become moot since the appeal w...
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The opinion of the court was delivered by Fred Warner was charged in four counts with violations of the intoxicating liquor law. Count one charged unlawful *361possession, count two an unlawful gift, count three unlawful transportation, and count four the maintenance of a nuisance. He was found guilty on counts one, three and four, and has appealed. The record discloses that on the evening of Janu...
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The opinion of the court was delivered by The action is one for the partitioning of real property, for the establishment of an oral mortgage thereon, for the foreclosure of the mortgage, and the adjustment of liens. Judgment was rendered in favor of the plaintiff, Stella D. Allen, and in favor of defendant, Lester Birch, as administrator of the estate of Clara T. Birch, deceased, from which the de...
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The opinion of the court was delivered by This was an action to recover on a promissory note for $10,000 executed by C. H. Montgomery and delivered to the Farmers State Bank of Russell. The defendant prevailed, and the bank appeals. The note was executed January 6, 1926, payable ten days after date, bearing interest at the rate of eight per cent per annum and ten per cent after maturity, and plain...
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The opinion of the court was delivered by The action was one by Harry F. Kastrup, a discharged cab driver, against the Yellow Cab and Baggage Company, to recover damages for battery inflicted on Kastrup by the company’s superintendent of cab drivers. Plaintiff recovered,- and defendant appeals. The business of the company is sufficiently indicated by its name. Roy Payne was manager of the company...
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The opinion, of the court was delivered by Joseph I. Elliott and La Vina Elliott, his wife, brought this action against the P. H. Albright Farm Loan Company to recover statutory damages and attorneys’ fees for the refusal of defendant to enter satisfaction of mortgages which were executed and recorded and upon which no money or other consideration was paid by the defendant. In defense the defenda...
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The opinion of the court was delivered by In this action the plaintiff seeks to recover $3,000 damages against the defendant railway company for closing and obstructing the use of Birch street in the city of Arkansas City, over the railroad crossing, and thus depriving the plaintiff of the only accessible and practical means of ingress and egress to and from his three lots on the north side of Bi...
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*329The opinion of the court was delivered by The defendant was convicted of a hit-and-run offense under the statute relating to the operation of automobiles on public highways, the pertinent part of which reads: “ . . . Any person operating a motor vehicle in this state who shall cause injury to any person or persons in the operation of said motor vehicle shall stop immediately and give his name ...
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The opinion of the court was delivered by This controversy presents the question whether under the terms of an insurance policy the word “grain” included 'cottonseed meal. The trial court held that it did not, and plaintiff appeals. The facts were substantially these. The plaintiff carried insurance in defendant company for the total amount of $3,700, of which $2,000 was upon grain on the premises...
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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 599 IN BANC. AFFIRMED. REHEARING DENIED. This is an appeal from a judgment determining the amount of the inheritance tax payable by the estate of H.W. Wallace, deceased. The question in controversy is whether 35 shares of the capital stock of H.W. Wallace com...
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IN BANK. This is a suit to establish in favor of the plaintiffs, lessors, an interest in a sum of money, which the defendant National Fire Insurance company promised *Page 303 to pay in the event of the destruction by fire of a building situated upon the land of the lessors; the policy of insurance was obtained by the other defendant, who is the respondent, and who is the assignee of the lessee; ...
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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 614 IN BANC. This is an action to recover damages on account of a personal injury sustained by plaintiff in an automobile accident. The cause was tried to the court and a jury resulting in a verdict for plaintiff. From a consequent judgment defendant appeals....
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 244 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 245 APPEAL DISMISSED. This was a proceeding in the circuit court upon a claim presented to the administratrix of t...
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The defendant prosecutes this appeal from a judgment rendered against it in favor of the plaintiff for the sum of $3,400. The judgment appealed from is for professional services rendered by the plaintiff in the capacity of an attorney at law for the Bonneville Hotel Company. After the *Page 15 plaintiff rendered the services which form the basis of this action the defendant purchased certain prop...
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This is an action to quiet title to a tract of land in Millard county. The plaintiff claims title by virtue of a tax deed issued pursuant to a regular sale of the property for delinquent general taxes assessed and levied for the year 1922. The defendant Millard County Drainage District No. 1 relies upon a tax deed for the same property issued to it upon a regular sale for delinquent drainage distr...
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This case is here on appeal from a decree and judgment of the juvenile court for Salt Lake county, state of Utah, committing Roderick McKendrick, a juvenile, to the Uintah Training School for 60 days. On March 3, 1926, a complaint was filed in the juvenile court for Salt Lake county, state of Utah, charging Roderick McKendrick with being a delinquent, in that, on October 4, 1922, at Salt Lake coun...
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This action was commenced in the city court of Salt Lake City. The complaint charged the defendant with operating a motor vehicle, to wit, an automobile, on State street, Salt Lake City, a public highway, in a manner that was not careful and prudent, and at a rate of speed of 30 miles an hour, contrary to the provisions of section 3992, chapter 82, Session Laws of Utah 1921. The defendant was foun...
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In this cause it is ordered that paragraph V of the judgment, which purports to remove L.F. Hughes and G.C. Chase as directors of the Rock Creek Water Corporation, a corporation, be and the same is hereby stricken out. It is further ordered that the judgment in this action also be modified by deducting from the amount $9,767.10, the sum of $450, and that, as so modified, said judgment be and it is...
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In this action, brought by plaintiff to recover fees alleged to be due for services rendered by him as an attorney at law on behalf of defendants in the matter of negotiating for settlement or instituting and prosecuting a suit on account of certain personal injuries and damages sustained by defendant William Yalen, the judgment is hereby affirmed. In the following statement of the case may be fou...
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Plaintiff, Charles Marelli, appeals from a decree of the Superior Court of the county of Marin dissolving an injunction restraining the sheriff of said county until the further order of the court from selling certain real property claimed by plaintiff upon which said sheriff had levied execution. The execution was levied and the said property advertised for sale to satisfy a judgment in favor of H...
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The plaintiff and respondent moves to dismiss the appeal herein on the ground that it is taken from a judgment which is not a final judgment within the meaning of section 963, subdivision 1, of the Code of Civil Procedure. The action was instituted to rescind, on the grounds of fraud and undue influence, a property settlement agreement made between the parties, husband and wife, who were divorced ...
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The record and briefs on the appeal in the above-entitled cause are on file. The notice of appeal to this court was filed on July 12, 1927. The action is for divorce and for an adjustment of property rights. The interlocutory decree of divorce was given for respondent, Elmer L. Jacobus, on his cross-complaint, and property rights were also settled thereby. Petitioner George W. Rochester was the...
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The judgment is affirmed. The action is an attack upon certain proceedings taken and completed by the City of Glendale under the Street Improvement Act of 1911, as amended (Stats. 1911, p. 730, chap. 397), followed by the issuance of bonds or warrants as provided in the Bond Act of 1915 (Stats. 1915, p. 1441, chap. 733). The attack is purely collateral, no single protest or objection of any kind h...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. The pleadings in the two *Page 787 actions are in the same form and the law...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. [1] The pleadings in the two actions are in the same form and the law points...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. [1] The pleadings in the two actions are in the same form and the law points...
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THE COURT. [1] This cause refers to the same street improvement proceedings and is in every respect, both as to the facts and as to the law involved, identical with and controlled by case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. Upon authority of that case, for all the reasons set forth therein and upon the same grounds, the judgment herein, which passed...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. [1] The pleadings in the two actions are in the same form and the law points...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564. [282 P. 797], this day decided. [1] The pleadings in the two actions are in the same form and the law point...
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THE COURT. This cause relates to street improvement proceedings which, although instituted under a resolution of intention bearing a different number, are otherwise identical with and were started the same day as those referred to in case No. 10085, Woodill v. City of Glendale, ante, p. 564 [282 P. 797], this day decided. [1] The pleadings in the two actions are in the same form and the law points...
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It appears that the parties to this action entered into a tentative agreement in writing on March 7, 1925, by the terms of which respondent agreed to loan the appellant $2,500 for the conduct of the latter's *Page 149 business, and to enter into his employment for a period of six months at a salary of $150 per month, in contemplation of forming a copartnership. It is contended that appellant rece...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 73 This is an action in equity, brought to set aside a sale of certain bank stock made under a purported *Page 74 assessment, and to declare the plaintiff the owner of said stock. On a previous appeal (Richman v. Bank of Perris, 73 Cal.App. 321 [238 P. 754])...
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In this action defendants' demurrer to plaintiff's complaint was sustained. A judgment of dismissal followed, and the plaintiff has appealed. The action was for libel. The main point of the demurrer was that the complaint showed upon its face that the alleged defamatory matter was privileged under the provisions of subdivision 2 of section 47 of the Civil Code, which makes a publication privileged...
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By an information, filed by the district attorney of Riverside County on the twenty-third day of April, 1929, appellant was accused of violation of the Corporate Securities Act in nine counts thereof, and of grand theft in two counts thereof. Count eleven, charging grand theft, was dismissed. The jury found the appellant guilty on counts one, three, four, six, eight and ten, all of which charged v...
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The Citizens Trust and Savings Bank of Los Angeles held in trust certain real property in which respondents were beneficiaries to the extent of a one-fourth thereof. While such beneficiaries respondents purchased from the trustee one of the pieces of real property affected by said trust, and as part payment therefor gave to the Citizens Trust and Savings Bank their promissory note, and as part of...
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OPINION OF THE COURT Under an information in two counts, charging (1) sale of intoxicating liquor, to wit, whisky, and (2) keeping it for sale, appellant was convicted. The information was drawn pursuant to section 1, c. 89, Laws of 1927, and in each count it charges that such intoxicating liquor (whisky) was not denatured or wood alcohol or grain alcohol intended for med...
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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 771 The plaintiff sued for damages for personal injuries resulting from the collapse of a temporary wooden "grandstand" erected for the convenience of spectators at festivities known as the "Tournament of Roses," held in the City of Pasadena. Demurrers to the...
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THE COURT. The defendant was convicted in the Superior Court of Sacramento County of a felony, to wit: The crime of robbery of the first degree. [1] The transcript on appeal was filed in this court October 22, 1929. No brief has been filed in behalf of appellant. The cause was regularly placed on the calendar for oral argment on December 2, 1929. No appearance *Page 272 was made for appellant at ...
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Appellant was charged by an information filed by the district attorney of San Diego County with the crimes of grand theft and forgery, and also with having suffered a prior conviction in the state of Ohio. Appellant admitted the prior conviction and after trial by jury was found guilty of the crimes of forgery and grand theft, as charged in the information. Prom the judgment and order denying his...
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This is an action for personal injuries to the minor plaintiff, received in a collision between a bicycle ridden by the boy and an automobile owned by and operated on behalf of the husband and wife who were made defendants. The cause was tried to a jury and a verdict rendered in plaintiff's favor for $1,018.10. The plaintiff moved for a new trial on a number of grounds, among them being inadequacy...
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This action was brought to compel the city of Seattle to continue to furnish street car service upon a particular street for a distance of two blocks, or about 1,320 feet. The cause was tried to the court, without a jury, and resulted in a judgment dismissing the application, from which the relator appeals. The facts essential to be stated are these: Prior to the year 1919, the Puget Sound Tractio...
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This action was originally instituted by appellant, as plaintiff, seeking a divorce from the respondent, as defendant. The case was tried on the merits and a decree entered December 4, 1926, denying a divorce and granting to the respondent separate maintenance. In September, 1927, appellant filed a verified petition in the cause, asking for modification of the decree as to the separate maintenance...
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PARKER, FULLERTON, HOLCOMB, and MILLARD, JJ., dissent. *Page 417 Plaintiff, during the year 1926, was operating a hospital in the city of Centralia, Lewis county, Washington. April 8 of that year, one Harry Smith, a pedestrian, while proceeding along the Pacific highway between Olympia and Tenino, in Thurston county, Washington, was struck by an automobile and his back broken. The injured man was...
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Appellant in this case had been for many years an employee of the respondent. This action is brought by respondent to recover $21,000 which it was claimed the appellant, by virtue of his employment, secured, abstracted, and appropriated to his own use. It was claimed that the method by which the appellant effected his misappropriation was by maintaining savings accounts in the Dexter Horton Nation...
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This action was brought by the plaintiffs to compel the board of county commissioners of Clark county to audit and allow a claim for professional services rendered to Diking Improvement District No. 3 in that county. The cause was tried to the court, without a jury, and resulted in findings of fact from which the court concluded that the plaintiffs were entitled to the relief sought. A judgment wa...
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In October, 1927, the Ren Real Estate Exchange sold and conveyed to one Theodore Wolf a lot located in the Latona addition to Seattle. The purchase price of the property was $1,200, of which $200 was paid in cash and $1,000 in notes secured by a mortgage. The purchase money mortgage contained the following clause: "Consent is hereby given to the placing of a new mortgage on said premises in as lar...
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This is an appeal from a judgment dismissing the plaintiff's action. Except in one particular, the trial court found the facts to be as alleged in the complaint, and the appellant, without in any way questioning any of the findings of fact, contends here that the facts as found entitle him to a judgment as demanded in his complaint. The essential facts upon which the action is based, as found by t...
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On November 19,1927, one Fred W. Freeman died intestate in Pierce county, Washington, *471 leaving an estate therein consisting of real and personal property. On December 13, 1927, his widow, Anna B. Freeman, was duly appointed as administra-trix of his estate. Freeman had been married prior to his marriage with the administratrix, and left surviving him a daughter and a son, the issue of the e...
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This is an action begun by respondent to enforce a lien for labor and materials performed *Page 542 and furnished upon lots 7 and 8, block 1, Weir park, a plat of land in Clark county, Washington. There was a written building contract between the parties whereby respondent agreed to construct a dwelling and garage for the agreed sum of $3,150. The contract contained specifications and a provision...
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The Defiance Lumber Company owns and operates a large sawmill on the waterfront near the Tacoma smelter in the city of Tacoma. This mill has been in operation for nearly a quarter of a century, and furnishes employment to approximately two hundred people. A little back from the waterfront on which this mill is located is a steep bluff, and near the top of this bluff and about a quarter of a mile f...
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"The phrase `accord and satisfaction' as generally known and applied in the law and under the definitions of our statute means the substitution of a new agreement in satisfaction of an obligation, different from the original rights existing under an antecedent liability." (Nelson v. Young, 70 Mont. 112,224 P. 237; Hale v. Belgrade Co., 75 Mont. 99, 242 P. 425; 1 C.J., 523, sec. 1.) "Where an accor...
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This is an action for divorce. Plaintiff's first cause of action is based upon cruelty; the second upon desertion. Defendant's answer consists of denials and explanations. She interposed a cross-complaint, charging plaintiff with desertion, asking for separate maintenance. The court found for the plaintiff, granted him a decree of divorce, denied defendant separate maintenance. Defendant appealed....
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Citing: 18 C.J. 1135; State v. Spotted Hawk, 22 Mont. 33,55 P. 1026; State v. Crafton, 89 Iowa, 109, 56 N.W. 257;State v. Olds, 19 Or. 397, 24 P. 394; State v. Hillman,42 Wn. 615, 85 P. 63; People v. Jackson, 144 App. Div. 697,100 N.Y. Supp. 126; People v. Diamond, 36 Misc. Rep. 71,72 N.Y. Supp. 179; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 P. 847; State v. Mott, 29 Mont. 292, 74 P. 728;Ri...
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Edward L. Brackett and wife executed a first mortgage on land owned by them, and later a second mortgage to secure the payment of three notes for $500 each. The second mortgage contained the recital that it was "subject to a certain first mortgage" of $2,400. The property was purchased from the Bracketts by appellant, and the instrument of conveyance contained the statement – "this deed is subject...
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Plaintiff brought this action as C.L. Shillingford, doing business under the name and style of Shillingford Motor Service, against Benewah County and E.J. Beaton, sheriff, etc., to recover a balance of $546.61 *Page 449 on an account for gasoline, supplies and services rendered in servicing the sheriff's official car, owned by said county, between May 1 and September 1, 1928. Defendants demurred ...
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The probate judge of Benewah county, January 10, 1927, appointed Mrs. N. Irene Williams clerk of his court for his term of office, and fixed her salary at $100 per month. The Board of County Commissioners approved the appointment and salary, February 14, 1927. Respondent acted as such clerk until January 14, 1929, and until April 1, 1928, received $100 per month from the county, at which latter da...
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Plaintiff and one Walters executed a promissory note for $5,000 payable to W.L. Eckley. The trial court found on supporting evidence that this note was given without consideration and upon representations, among others, that the note would not have to be paid by the makers, and that Eckley would keep on deposit with it other valuable paper, the proceeds of which would be applied in payment of plai...
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OPINION OF THE COURT Appellant was convicted of operating a crap game for money. The case was simple. For the state two witnesses swore that they were present and saw appellant operating the game; one of them, that he participated in it. Appellant admitted that he was present at the time and place in question, but claimed that he was merely playing solitaire. The two witn...
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THE amended complaint alleges that of the numerous defendants, R. O. Jeannot and William Inglis agreed to hold and manage a contest for the benefit and use of a number of merchants of the town of Walsenburg. With whom these two men made this contract is not alleged. *Page 442 Subsequent to the commencement of the contemplated contest and before its termination, certain other business men and corp...
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PARTIES are referred to as they appear in the lower court. Plaintiffs sued defendant on two counts to recover on two promissory notes, one dated July 25, 1925, payable to the order of the Globe National Bank for the principal sum of $500, and the other dated August 27, 1925, payable to the order of said bank for the principal sum of $1,000. Defendant interposed two defenses to each of which the pl...
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delivered the opinion of the court.. The Black Forest Bealty and Investment Company, being at the time engaged in a selling campaign to dispose of its own property, employed James C. Clarke as its “general sales manager,” to have “supervision and control, subject to the board of directors, * * * of all sales of lots owned by” the company, ‘ ‘ and of all salesmen engaged in our 1928 selling camp...
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Does public policy require and the Nevada industrial insurance act by specific provision provide that no claimant for compensation shall contract with an attorney to represent the former in an action at law for the recovery of compensation after a claim has been finally rejected by the Nevada industrial commission? We think the answer is no, for the following reasons: When once the Nevada industri...
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This was an action instituted by defendants in error herein, being certain taxpayers in Garvin county, against the board of county commissioners of that county, to restrain the said board from reissuing certain bonds representing a bond issue which had been previously authorized by a vote of the people, and issued and approved pursuant to law, and later canceled and destroyed pursuant to regular p...
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Respondent moves to dismiss the appeal taken by appellant from an interlocutory decree of divorce and from two orders subsequently made, which are not identified by date, but which we assume from the transcript to be an order denying a motion to set aside the interlocutory decree and an order denying a motion to dismiss the action. The motion to dismiss the appeal is made on the ground that the a...
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The parties on appeal appear in the reverse order to that in the court below, and they will be referred to as they appeared there. The plaintiff was a real estate agent. He brought suit against the defendant and set up in two separate causes of action that he had procured a purchaser for two separate pieces of real estate for and on behalf of the defendant, and asked for a total recovery of $388.7...
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The plaintiff in error, hereinafter called the defendant, was by information charged jointly with Daniel Walker, with unlawfully, stealthfully, and feloniously stealing from the possession of Chester Wenzel twelve turkeys, of the value of $23.81, was convicted, and his punishment fixed at six months in the penitentiary, from which judgment and sentence the defendant has appealed. After the test...
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The plaintiff in error, W.B. Jones, hereinafter referred to as the defendant, was convicted in *Page 247 the district court of Pontotoc county of the crime of embezzlement, and sentenced to serve a term of three years' imprisonment in the state penitentiary and to pay a fine of $20,000. The information charged the embezzlement by the defendant, who was the commissioner of accounting and finance a...
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The plaintiff in error, hereinafter called defendant, was convicted of grand larceny in the *Page 344 district court of Pontotoc county, and his punishment fixed at confinement in the state penitentiary for a term of two years. Briefly stated, the record discloses a state of facts about as follows: Just prior to the larceny, the prosecuting witness Collins had butchered several hogs, and had stor...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor with intent to sell the same and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 80 days. The evidence discloses that the deputy sheriff and an undersheriff saw the defendant carry two pint bottle...
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The plaintiff in error, hereinafter called the defendant, was convicted on a charge of assault with intent to commit rape, and was sentenced to imprisonment in the penitentiary for a term of five years. Motion for new trial was filed, considered, and overruled, exceptions duly saved, and the case appealed to this court. Petition in error and case-made were filed in this court on November 12, 1927...
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The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of having possession of three quarts of whisky with intent to sell the same, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of 60 days. The evidence of the state was that the sheriff and one of his deputies visited the filling stat...
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The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged with the crime of robbery of W.W. Huckett, on the 11th day of September, 1926, with a firearm; was tried and sentenced to imprisonment in the state penitentiary for the period of natural life. Motion for new trial was filed, considered, and overruled, and the defendant has appealed to this ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of manufacturing whisky, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of 6 months. The defendant contends that the search warrant was void, and that therefore the evidence secured thereunder was inadmissible; the particular objection t...
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The plaintiff in error, hereinafter called the defendant, was jointly informed against with Bill Orum, Orville Shrader, Alva Welch, Jim Hockersmith, Arnold Cornelison, Pat Orum, and Dwight Davis; was tried separately, convicted, and sentenced to imprisonment in the state penitentiary at McAlester for a term of five years. Record was saved, and the defendant has appealed to this court. After the ju...
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The plaintiff in error, for convenience referred to as the defendant, was convicted in the county court of Logan county upon a charge of possession of six pints of red corn liquor, with the willful, *Page 339 unlawful, and wrongful intent to violate the prohibitory laws, and was sentenced to pay a fine of $150 and to be imprisoned in the county jail for 60 days, from which judgment the defendant ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county on a charge of murder and was sentenced to life imprisonment. *Page 331 The theory of the state is that defendant, with Wesley Harrison, Alton Purdy, and Asa Pendleton, acting together in the nighttime, burglarized a warehouse of the Okemah Wholesale Grocery Company at Okemah, and, while c...
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This is an appeal taken by the department of labor and industries of Washington from a *Page 433 judgment of the superior court to the effect that one Charles E. Swalley is entitled to claim certain benefits under the industrial insurance act. The facts giving rise to this controversy are, briefly stated, as follows: Charles E. Swalley and one James L. Vale jointly purchased a tract of timber lan...
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Robert Billy and two others were charged by information with being jointists. The trial resulted in a verdict of guilty. From the judgment and sentence, Billy appeals. When the trial opened, the state, upon the demand of the appellant, stated that the place where it was *Page 406 claimed the liquor was actually sold and the offense committed was 118 1/2 Third avenue south in the city of Seattle. ...
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In June, 1928, appellant was proceeded against in the superior court for Okanogan county upon an information charging that in that county, state of Washington, appellant did, on about May 31, 1928, then and there unlawfully have in his possession twelve beaver hides. *Page 410 Both sides stated in their briefs that appellant had been previously tried before a justice of the peace, found guilty, f...
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The information charged the defendant with the crime of being a common gambler, in that the defendant, ". . . as the owner and manager thereof . . . did wilfully, unlawfully and feloniously, open, conduct, carry on and operate a gambling game commonly known as craps, the same being played and operated with dice and the same being a game of chance whereby money is bet, wagered and hazarded upon a c...
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The plaintiff Thurber commenced this action in the superior court for King county seeking reformation of a lease contract, entered into between him as lessee and the defendant Clark as lessor, by *Page 486 correction of the description of the land in the lease. Thurber's claim of relief is rested upon the theory of mutual mistake in the description of the land. Clark's resistance to Thurber's cla...
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The plaintiff, Minkove, commenced this action in the superior court for King county seeking recovery of damages claimed as the result of fraudulent representations made to him by the defendant Islander, inducing him, without consideration, to execute and deliver to Islander a series of twenty negotiable promissory notes. Trial upon the merits in that court, sitting without a jury, resulted in fin...
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BEALS, J., dissents. The Whole Grain Wheat Company is a corporation organized under the laws of the state of Arizona. Its place of business is in the city of Chicago in the state of Illinois. It is engaged in manufacturing and selling to distributors a so-called food product which it designates as "Whole Grain Wheat." The product is wheat in its natural state, cooked in water with a small quantity...
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Defendants, in December, 1926, being the owners of a large, old-fashioned dwelling in the city of Tacoma which they desired to remodel and make into a rooming house, retained, by written contract, L.C. Stacy (plaintiff's assignor) to install a heating plant and a plumbing system. The heating system was to be installed for not to exceed $1,300. For the plumbing, Mr. Stacy was to be compensated on t...
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Henry H. Gulstine executed his last will on October 11, 1927, and died on October 18, 1927. His will contained the following provisions: "(a) To my daughters, Berna Claudine Damman and Josephine Amanda Leigh, I devise and bequeath the sum of two thousand dollars ($2,000) to each of them, and no more, payable out of my life insurance. "(b) My wife and I having already conveyed to my daughter, Henri...
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This is an appeal by the Bethany Presbyterian Church, a corporation, from an order of the superior court for King county awarding to King county $343.63, now in the hands of the clerk of that court, claimed by the church as part of the compensation awarded to it in an eminent domain proceeding prosecuted by the city to final judgment therein, wherein the city acquired title to certain land from th...
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This action was commenced for the recovery of damages on account of alleged malicious prosecution. From a judgment of dismissal entered upon verdict in favor of the defendants, the plaintiff appealed. The respondents and appellant are farmers residing three or four miles distant from each other. Both own small herds of cattle which, in the summer, range in common with cattle of other parties on la...
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This is an action to recover a commission on the exchange of real estate, tried to the court *Page 583 sitting without a jury, resulting in findings of fact and conclusions of law adverse to the plaintiff and a judgment dismissing its action, from which judgment the plaintiff has appealed. Respondents have not appeared in this court, and we are without the assistance of any brief or argument in s...
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On November 1, 1927, the respondents Wallis, being then the owners of certain real property situated in the city of Seattle, contracted to sell the property to the appellant, Elliott, at a price of $5,500. Elliott, at the time of the execution of the contract, paid $1,000 in cash on the purchase price, assumed and agreed to pay a mortgage of $2,600 then a lien on the property, and agreed to pay th...
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A complaint was filed in the justice court of Adamana precinct, Apache county, on the thirteenth day of June, 1928, against two young Navajos, Indian Fred and Hostein Set Chizzy Bega, hereinafter called defendants, charging them with attempted train wrecking. They were given a preliminary examination and bound over to the superior court upon the charge set up in the complaint. On the twenty-third ...
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This is an appeal by the Roosevelt Irrigation District from a judgment for the defendants, Beardsley Land and Investment Company and Maricopa County Municipal Water Conservation District No. 1, entered upon the refusal of the plaintiff to amend further after a general demurrer to its first amended complaint had been sustained. It appears from this complaint that in 1927 the defendants, for the pur...
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This action was brought by the respondents in the district court of Canyon county against the defendants, H.A. Partridge, appellant, and H. Craig, to quiet title to certain real property, situated in Canyon county. The complaint set out two causes of action: The first relating to a certain tract of land in what is known as Kurtz Addition to Nampa, Idaho; the second covering lots in Arlington Addit...
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This is an action in forcible detainer brought to recover possession of a certain farm, which plaintiff claims he was entitled to in 1928. He had held the premises under a written lease from H. Craig for the year ending September 1, 1926. One Murray then became the owner of the farm and let it to plaintiff for 1927, under the former written lease. Although there was a house on the farm, no one res...
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On October 10, 1925, Xavier Servel and Julia, his wife, residents of Pocatello, Bannock county, Idaho, made and delivered to W.F. Kasiska, defendant and appellant herein, their promissory note in the principal sum of $35,000, payable one year thereafter, and bearing interest at the rate of 8 per cent per annum. To secure this note, together with such additional advances as might from time to time ...
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This action was prosecuted in the lower court by Josie Walker, plaintiff and respondent, against Carl Shell, W.T. Clinkenbeard, Luke Clinkenbeard, Morris Cook, A. Blomberg, and the unknown owners of the Jgafle, the Grangeville and the Columbus Placer Mining claims, so called, in the Elk City Mining District, Idaho county. A decree in favor of plaintiff and respondent was entered against Carl Shell...
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The petitioner applied for and was granted a writ of review herein upon its application therefor, wherein it sought to have reviewed and annulled a decision and award of the Industrial Accident Commission wherein it finally granted to one Pete Sertok, an employee, a disability award. The facts upon which the application of the petitioner is predicated are not disputed and may be briefly summarized...
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The judgment is affirmed. After a careful reconsideration of this cause, particularly in the light of the authorities especially urged by appellant, *Page 551 we find ourselves wholly in accord with and are pleased to adopt as the opinion of this court in bank herein, the following opinion written by Mr. Justice Plummer of the Third Appellate District, supplemented, however, by a more extended re...
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On December 12, 1927, a member of the Los Angeles County Bar Association addressed a letter to it, in which he complained of misconduct on the part of petitioners, while acting as attorneys for plaintiff, in a case pending in the Superior Court of that county, wherein he himself represented certain defendants. Under a stipulation that the matter should be heard and determined as though it had been...
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The facts in this case are not in dispute. Prior to the commencement of this action, one B.D. McAlvay brought an action against B.C. Stockwell and the Consumers Salt Company for the purpose of quieting the title of the former to 225,000 shares of the capital stock of said Consumers Salt Company, a corporation. These shares of stock then stood in the name of Stockwell upon the books of said company...
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Motion to dismiss appeal on the ground that the questions involved therein have become moot. There is no merit in the motion and it is denied. [1] Respondent contends that this action was brought to enjoin the voting of certain shares of stock of the Consumers Salt Company at the annual meeting of the stockholders of said company and that as the annual meeting of said company was held on July 16, ...
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The plaintiffs sued the defendants for moneys received. The defendants filed separate demurrers to plaintiffs’ amended complaint, the demurrers were sustained without leave to amend and judgment was entered in favor of the defendants. The plaintiffs appealed and have brought up the judgment-roll. The record does not show that the plaintiffs asked leave to amend and we may therefore assume that th...
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To secure the repayment of a promissory note to J.J. Meili and O.W. Fry, respondents, J.A. Crane and Evangelyn Crane executed two mortgages, one a second mortgage on a piece of orchard land in the county of Los Angeles and the other a chattel mortgage on certain furniture and equipment in an apartment house in the city of Los Angeles, together with their leasehold interest therein. Upon default on...
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THE COURT. An appeal by the defendant from a judgment entered against him in an action to recover damages for personal injuries alleged to have been caused by his negligence. The injuries followed a collision in the city of Santa Cruz between two automobiles driven by the respective parties to the action. The defendant denied that the injuries and damage complained of were due to his negligence, a...
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On November 13, 1913, Theodore J. Welk recovered two judgments in the Superior Court in separate actions in each of which the appellant Newton J. Skinner was a defendant. On March 14, 1927, Welk having died, his administrator procured from the Superior Court an order for the issuance of a writ of execution in one of these actions, No. B3694. Thereafter appellant moved the court for an order recall...
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The defendant appeals from a judgment in favor of plaintiffs who sued for a balance on the purchase price of real property. Negotiations were carried on in behalf of the parties to this appeal, which culminated in an option agreement, the portion which is essential to a determination of this appeal being as follows: "Whereas, the sellers are owners of certain lands in San Luis Obispo and Monterey ...
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The plaintiffs are husband and wife. The wife joined her husband and commenced an action to recover damages for personal injuries. The defendant answered, and a trial was had before the court sitting with a jury. The jury returned a verdict in favor of the plaintiffs, and from the judgment entered thereon the defendant has appealed. In the complaint it is alleged that the defendant is a corporatio...
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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 Respondent instituted this action against defendants to recover judgment upon a promissory note dated August 6, 1923, given by Leroy Little, and signed by him "Leroy Little Wo," by the terms of which the maker promised to pay respondent $2,412.13, with in...
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Defendant was convicted on each of two counts in an information wherein he was charged with the commission of the crime of forgery and a prior conviction of a charge of forgery, a felony. He appeals from the judgment and an order denying his motion for a new trial. Other than as to the second count in the information, no serious effort is made by appellant to show that prejudicial error was commit...
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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 194 Defendant, the surety on a bond given under the terms of section 1183 of the Code of Civil Procedure, appeals, under the alternative method, from a judgment ordering payment of the full penal sum to the clerk of the court, for distribution between the own...
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THE COURT. The parties to the above action, who were formerly husband and wife, made a property settlement on July 14, 1921. The material parts of the agreement in which the defendant is named as the first party and the plaintiff as the second party, are as follows: "The parties hereto have agreed and do hereby agree as follows, to wit: 1. That said first party hereby agrees to pay said second par...
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Respondents have made a motion in this court for an order for diminution of the record directing the clerk of the trial court to add to the clerk's transcript filed herein on April 5, 1929, a certain order of the trial court made on September 20, 1929, which order the clerk of said court pursuant to the order of the trial judge entered nunc pro tunc as of February 21, 1929. The original order made...
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This is an appeal from a judgment in favor of the plaintiff. In the month of May, 1924, a representative of plaintiff company observed a ‘1 Will-build-to-suit-tenant ’ ’ sign upon a lot at Temple Street and Burton Way in the city of Los Angeles, owned by defendant Emma E. Taber, which sign directed all inquiries regarding said lot be addressed to Lewelleyn J. Smith. On May 28th, as a culmination ...
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This is an appeal from a judgment for damages for the breach of a contract of employment. The defendant was the owner of a garage in Sacramento. July 16, 1927, the parties to this action executed a written contract for the employment of plaintiff as manager of the *Page 162 garage for "a period of not less than one year," at a salary of $50 per week. This contract provided that: "In the event the...
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This appeal was taken from the Superior Court of Imperial County from a judgment for plaintiff in the sum of $294. The history of the case is somewhat complicated, and the record on appeal by no means clear in its details. Suit was originally brought in the Justice’s Court of El Centro township, county of Imperial, by the appellants here against W. Maloof and Paul Blenkiron and John S. Doddri...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 154 This is an appeal from a judgment of dismissal in an action for equitable relief. The judgment was rendered after separate demurrers to the complaint had been sustained without leave to amend. The action involves a claim to growing crops, on the part of a...
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Appeal from a judgment for plaintiff against appellant, entered pursuant to the verdict of a jury, for damages received by plaintiff in a collision between a laundry truck driven by him and an automobile driven by appellant. At the place of collision the main coast highway between Los Angeles and Santa Barbara runs approximately east and west and is crossed practically at a right angle by another ...
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Plaintiff, as executor of the above-named deceased, brought this action against defendant, a daughter of the said deceased, for the sum of $3,250 as the agreed purchase price of 100 shares of capital stock of the San Francisco Milling Company. The complaint was later amended by adding the allegation that defendant had agreed to pay for said stock the reasonable value thereof and that the reasonab...
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The district attorney filed an information against the defendant charging him with having committed the crime of grand theft. The defendant pleaded not guilty. The jury brought in a verdict of guilty. The defendant made a motion for a new trial. The motion was denied. From the judgment entered on the verdict and the order denying a new trial the defendant has appealed. [1] On this appeal the defen...
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The plaintiff was given judgment for damages alleged to have been caused by the defendant's breach of the terms of a lease. The defendant has appealed. By the terms of the lease the defendant let to the plaintiff 120 acres of land for one year, commencing December 1, 1925, at a cash rental of $20 an acre, all the lands "to be cropped entirely to cotton, except 20 acres, which may be cropped in who...
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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 389 Respondent filed her action for divorce in the court below upon the grounds of extreme cruelty. Appellant filed his answer in which he specifically denied all of the allegations of extreme cruelty. After a trial the court granted respondent an interlocuto...
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About 8 o'clock in the evening an automobile in which respondent was riding stalled close to and almost parallel with the track of the appellant company, on a public street in the city of Alameda; and while respondent was stooped in front of the machine endeavoring to start the same by cranking the engine one of appellant's interurban electric cars ran into the rear end of the automobile, shoving ...
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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 223 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 224 Respondent brought this action to recover damages for personal injuries sustained as a result of being struck ...
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The plaintiffs were the general contractors for the erection of a building for the defendant Wm. J. King. This action was brought for the purpose of foreclosing a mechanic's lien for the last payment in the sum of $5,700. Judgment was rendered for the defendants and plaintiffs prosecute this appeal. *Page 362 The contract, after stating the times for and the amounts of the first three payments, r...
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THE COURT. An action to recover the sum of $1625 alleged to have been received by the defendant for the use and benefit of the plaintiff. The plaintiff claimed that the above amount was deposited with the defendant as security for the payment of the rent of certain real property in San Francisco; that a written lease thereof containing the terms agreed upon by the parties and pursuant to which the...
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This is an appeal from a writ of mandate which was issued to require the assessor of Lake County to include in the Upper Lake Union School District, for the purpose of raising elementary school taxes, the territory sought to have been withdrawn therefrom by the creation of a new elementary school district called the Lucerne School District, on the ground that the procedure of organizing this new d...
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We find from an examination of the authorities that to convict a man of larceny in any degree it must be shown that the four elements which go to make up larceny must be present, and in addition we find that to convict one of any crime there must be a joinder of act with felonious intent, and that these two elements must occur and be present simultaneously. When we apply this to the facts at bar, ...
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This action is to recover damages, both actual and punitive, for flooding water upon lands belonging to the plaintiff and his assignor, Maud Tripp Morehouse, during each of the irrigating seasons of the years 1919, 1920, and 1921. The wrongful acts complained of and the damages suffered for each season are stated in six separate causes of action in the plaintiff's complaint. Except as to time, the...
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The plaintiff brought this action, as the assignee of the Eastern Utah Wholesale Retail Company, to recover $118.47 for goods sold by the latter to the defendants, who were alleged to have been partners at the time doing business under the firm name of Pullman Cafe. One of the defendants only, Harry Mahleres, defended the action. A trial was had to the court, and judgment rendered for the plainti...
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This case was here on a former appeal from a judgment in favor of the plaintiff. The judgment was reversed and a new trial granted, 70 U. 398; 260 P. 855. A retrial before a jury again resulted in a judgment in favor of the plaintiff *Page 56 against the firm or copartnership and against James Makrakis and Chris Furgis individually, the members of the firm, from which all of the defendants again ...
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This action was brought to have conveyances of real estate and transfers of personal property absolute in form impressed with an express trust alleged to have been orally imposed. The controversy arises among heirs, the children of E.W. Howell, deceased. He had two wives. The plaintiffs, four in number, all women and all married, are children of the first wife. The defendants, twelve in number, me...
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The original complaint in this action was to recover damages for the conversion of an automobile alleged to have been owned by the plaintiff and wrongfully converted to his own use by defendant. After some contested proceedings relating to a garnishment sued out by the plaintiff, an amended complaint was filed wherein it was in substance alleged that on and prior to April 9, 1927, the plaintiff wa...
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"A judgment is void only when upon inspection it is apparent that the court either did not have jurisdiction, or has committed an act in excess of its jurisdiction." (State ex rel. Thompson v. District Court, 57 Mont. 433, 188 P. 902.) "A void judgment is no judgment; its validity is open to question at any time; it cannot be enforced; no right can be derived from it; all proceedings founded upon ...
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On motion of the relator, F.J. O'Connor, the district court of Silver Bow county rendered judgment on the pleadings in a proceeding for writ of mandate, granting a peremptory writ commanding Thomas J. McCarthy, as treasurer of the city of Butte, to pay out of the general fund of the city the amounts called for by twelve city warrants issued to relator for a year's salary as assistant city treasure...
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Appeal from a decree quieting title in C.L. Teisinger, as receiver of the Yellowstone Bank Trust Company, as against the claim of James Hardy and all persons claiming any interest in a tract of land in Richland county. The record as to transactions affecting title to the tract in suit is somewhat confusing; the following tabulation may tend to clarify it: (1) The Brown transaction: (a) May 24,...
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This case, here by direct appeal, has been submitted upon respondent's motion to dismiss. The proceeding *Page 122 below was one instituted under the Workman's Compensation statutes of this state and resulted in two awards totalling $4635.81 in favor of the respondent, who was the alleged employee and the claimant in the District Court. These awards were made on the 24th day of May, 1929, and the...
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Plaintiff and defendant were opposing candidates for the office of sheriff of Uinta County at the last general election. After the official canvass of the returns, defendant was declared elected, and plaintiff brought a contest. A demurrer to the petition was sustained, and plaintiff declining to plead further, judgment was entered in favor of defendant. Plaintiff brings the case here by proceedin...
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In three cases between the same parties and raising similar issues, the defendants have appealed, and the plaintiff has moved to dismiss the appeals because the records fail to show the entry of the orders appealed from. In each case judgment against defendants, dated July 25, was entered July 26, 1929. Each record contains a written stipulation by counsel that on July 25 defendants made in open c...
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This is an appeal from a judgment of the District Court of Laramie County obtained by the respondent Nels Christensen, hereinafter mentioned as the "plaintiff," against the appellants Bernard P. McCann and Mrs. Bernard P. McCann, subsequently generally referred to as the "defendants" or by their respective names. The action arose in consequence of an automobile collision between a Buick coupe owne...
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delivered tbe opinion of tbe court. Edmund A. Allen, doing business as the Allen Realty Company, brought suit in tbe district court to recover a judgment in tbe sum of $750 for services rendered by him in effectuating an exchange of real estate belonging to tbe Cherokee Realty Company, a corporation, for California real estate. Tbe case was tried to tbe court without tbe intervention of a jur...
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WILLIAM M. Kitt sued Henry Runge for damages for an alleged breach of contract. Runge filed a counterclaim for specific performance of the same contract. The court held with Runge both on the complaint and counterclaim. On July 14, 1927, the parties contracted to exchange Kitt's land in Weld county, Colorado, for Runge's land in the Province of Alberta, Canada, and $1,000 in cash. The contract con...
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PLAINTIFF Newton, who has a state license to practice medicine in Colorado as an osteopathic physician, for himself, and others similarly situated, brought this action against the board of county commissioners of Weld county, Colorado, to enjoin the enforcement by the board of its general policy embodied in its adopted resolution, the purpose as well as the effect of which is to bar osteopathic ph...
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The opinion of the court was delivered by Defendant appeals from conviction of manslaughter in the fourth degree on an information charging that while he was driving an automobile on a public highway at an unlawful rate of speed and in a culpably negligent manner his automobile struck and killed a man. The principal question is whether the court properly instructed the jury. *382The accident occu...
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This is an action to recover a judgment for some unpaid instalments of rent. The complaint alleged that under the provisions of a lease the defendant promised to pay a gross rental of $4,800 in instalments of $80 per month for the period of November 15, 1924, to November 15, 1929, and that the instalments due April *Page 671 15, 1928, and May 15, 1928, had not been paid; judgment for the sum of $...
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Respondents move to dismiss this appeal for the reason that the appellant has failed to file a transcript of the decree appealed from within the time allowed. Respondents in their brief state that “no trans-script of the decree appealed from, as shown by the notice of appeal, has been filed in this appellate court, but the transcript on appeal contains only a transcript *237of a nonappealable orde...
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This is a suit to remove a cloud upon plaintiff's title to certain lands described in the complaint; to have an assessment on said lands for the year 1919 declared void and of no effect; to have set aside and declared null and void what is alleged to be a pretended sheriff's deed on tax foreclosure sale to defendants, and for other equitable relief. Every proceeding in relation to the tax, and, af...
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IN BANC. The complaint alleges that April 7, 1928, Charles Williamson died intestate leaving an estate consisting of both real and personal property, that the plaintiff was appointed the administrator of the estate, that after several of the claims against the estate had been paid out of available funds other claims, which had been approved, still remained unsatisfied, and that in order to enable ...
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IN BANK. AFFIRMED. For respondent there was a brief over the name of Messrs.Winter Maguire with oral arguments by Mr. Robert F. Maguire and Mr. Charles J. Shelton. This is an action to recover damages sustained by plaintiff, whose car was run into by one driven by defendant, causing the injuries complained of. At the time of the accident plaintiff was driving north on East Fifteenth street at its...
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Harmon county, acting under the provisions of section 8572, C. O. S. 1921, as amended by Session Laws 1923, c. 176, invested certain sinking funds in waterworks bonds of the town of Shattuck, which were purchased from the defendant in error, R. J. Edwards, Inc. It appears that thereafter, the county being desirous of converting said bonds into cash, advertised the same for sale and requested bids ...
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This is an appeal from an order and judgment of the Corporation Commission granting the defendant in error, petitioner beore the Corporation Commission, a revocable permit for furnishing gas, as a public utility, to the city of Ada under the terms and conditions of chapter 102, Session Laws 1925, commonly known as House Bill 4. There is filed in this cause a stipulation by the parties that the opi...
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This is an appeal from an order and judgment of the Corporation Commission granting defendant in error, the petitioner before the Corporation Commission, a revocable permit for furnishing electric service, as a public utility, in the city of Ada under the terms and conditions of chapter 102, Session Laws 1925, commonly known as House Bill 4. Plaintiff in error in due time served and filed its brie...
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John Bishop, a carpenter, who sometimes did common labor, brought suit for damages against Kansas City, Mexico Orient Railway Company, defendant below, alleging that he was injured by reason of negligence of the railway company. The petition was in the usual form and so much of the allegations thereof and of the evidence supporting same as may be necessary to understand the points at issue will b...
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This cause presents error from the district court of Mayes county, wherein plaintiffs in error on the 7th day of September, 1921, filed in the district court of Mayes county a motion for new trial in a cause at issue and theretofore tried in said court under the style and name of First National Bank of Pryor Creek, Okla., a Corporation, v. J.H. Harris and T.C. Harrill et al. The principal allegati...
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This is an appeal from an order of the district court of Tulsa county denying plaintiff in error's motion to vacate an order dismissing the action. The action was begun by the board of county commissioners of Tulsa county against Wayne L. Dickey and the Maryland Casualty Company to recover the value of certain bonds alleged to have been improperly accounted for by the said Dickey as coun- *Page 23...
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This action was commenced in the district court of Tulsa county on June 18, 1927, by J.J. Fanning against the board of education of the city of Tulsa, its individual members, and the Rucks-Brandt Construction Company, a corporation, to enjoin the defendants from further proceeding under the terms of a contract entered into between the defendants for the erection, improvement and enlargement of cer...
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This action was commenced in the district court of Tulsa county by the plaintiff in error against the defendant in error to recover on an alleged contract for the sale of an oil and gas lease. The parties appear as they did in the trial court. The plaintiff alleges that on or about the 12th day of November, 1925, he entered into a contract with the defendant for the sale of an oil and gas lease lo...
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This is an appeal from the district court of Carter county. Plaintiff, Anna Roberts, brought an action for specific performance of a certain oral contract for the sale of real estate against the defendants Jacob M. Miller and Carrie H. Miller. The judgment of the trial court was in favor of the plaintiff, Anna Roberts, and the defendants prosecute this appeal. The parties will be referred to as th...
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The plaintiff in error, Virg Sudderth, hereinafter called defendant, was convicted in the district court of Cleveland county of the crime of driving an automobile on a public highway while under the influence of intoxicating liquor and punishment fixed at a fine of $100. No contention is made that the evidence is insufficient; therefore it is unnecessary to state the facts. The charging part of th...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county on a charge of perjury and was sentenced to serve a term of four months in the state penitentiary. *Page 269 The charge arose from the following state of facts: Defendant was an applicant before the county judge for a license to operate a pool hall under the provisions of section 3204, Comp....
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The plaintiff in error, hereinafter called defendant, was prosecuted in the county court of Ottawa county upon information charging the defendant, Mark Carmickle, with the crime of imputing unchastity to a female in the manner and form as follows: "That the said Mark Carmickle then and there being did then and there, wilfully, unlawfully, falsely, maliciously and wantonly, impute to Mrs. Florence ...
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This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Kiowa county. It appears from the petition and the evidence and exhibits before the court that before a justice of the peace of Kiowa county, petitioner was adjudged guilty of a misdemeanor and was sentenced to pay a fine of $1 and costs; that petitioner has served 41 days in the ...
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Be it remembered that on the twenty-fourth day of January, 1929, there was filed in this court a copy of a judgment-roll duly certified by George E. Arnold, as clerk of the district court of Musselshell county, Montana, in that certain cause entitled “The State of Montana, Plaintiff, v. W. W. Barton, Defendant,” from which judgment-roll it appears to this court that the said W. W. Barton on t...
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On motion of the attorney general the appeal in the above-entitled cause is dismissed for the reason that the transcript was not filed in this court within the time allowed by section 12116, Revised Codes of 1921. ...
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The attorney general’s motion to dismiss the appeal herein for the reason that while the transcript on appeal was filed on October 23, 1928, no brief has been filed by appellant, contrary to Rnle X of this court, is sustained and the appeal is ordered dismissed. ...
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After hearing argument by counsel for relator and upon consideration it is ordered that the proceeding be, and the same is hereby, dismissed. ...
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The plaintiff in error was convicted in the county court of Caddo county on a charge of unlawfully transporting whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail. The case was tried in August, 1928, and the appeal was lodged in this court in October, 1928. No briefs in *222 support of the appeal have been filed. The evidence clearly shows that defendant, ...
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The plaintiff in error was convicted in the county court of Kiowa county of transporting whisky, and was sentenced to pay a fine of $50, and to confinement in the county jail for a term of 30 days. Judgment was entered in October, 1928, and the appeal was lodged in this court in November, 1928. No briefs in support of the appeal have been filed. The evidence amply sustains the judgment. No mate...
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The plaintiff in error was convicted in the county court of Caddo county on a charge of having possession of a still, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail. The case was tried in September, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. The evidence sufficiently sustains the judgment. ...
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Decided April 26, 1929. It appearing to the court that upon the third day of December, 1928, this court rendered judgment for relator and entered its order annulling an order of the district court of Silver Bow county of date September 22, 1928 (see 83 Mont. 377,272 P. 553), and that the relator is entitled to his costs in this court in the sum of ten dollars, being the amount of the fee paid the ...
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The plaintiff in error was convicted in the county court of Caddo county of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. The judgment was rendered in August, 1928, and the appeal was lodged in the court in October, 1928. No briefs in support of the appeal have been filed. The evidence reasonably sustains the judgment. No juris...
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The plaintiff in error was convicted in the county court of Canadian county on a charge of selling whisky, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail. The judgment was rendered on the 24th day of September, 1928, and the appeal was lodged in this court on the 1st day of December, 1928. No briefs in support of the appeal have been filed. The evidence sufficie...
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The plaintiffs in error were convicted in the county court of Caddo county on a charge of having unlawful possession of whisky. Lonnie Green was sentenced to pay a fine of $200, and to serve 90 days in the county jail, and Ada Green was sentenced to pay a fine of $250 and to serve 90 days in the county jail. The case was tried in September, 1928, and the appeal was lodged in this court in Octob...
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The plaintiff in error was convicted in the district court of Comanche county on a charge of having the unlawful possession of intoxicating liquor as a second and subsequent violation of the liquor law, and was sentenced to serve a term of three months in the state penitentiary at Granite, Oklahoma. Judgment was rendered in February, 1928, and the appeal was lodged in this court in August, 1928...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the unlawful possession of ivhisky, and was sentenced to pay a fine of flOO and to serve 90 days in the county jail. *146 Since the filing of this appeal, defendant has filed a motion to dismiss his appeal and the appeal is hereby dismissed. Mandate to issue forthwi...
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This is an action to recover upon express contracts for work and labor alleged to have *612 been performed at the special instance and request of the defendant. There is no issue as to the value nor the amount of the labor performed by plaintiff and his assignors. The defendant denies that it ever entered into any contract of employment. Verdict and judgment was had for the plaintiff. Defendant...
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This is an action to recover moneys received by the defendant Swartz-Sprague Motor Company from the collection of certain bills and accounts belonging to the defendant Sprague Motor Company, which it is alleged had been by it orally assigned to the plaintiff. The cause was tried to the court sitting without a jury, resulting in findings of fact favorable to the defendant Swartz-Sprague Motor Co...
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