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All Reporters → p → Volume 51

Opinions in p Volume 51

This is an appeal from the judgment rendered against defendants in an action for the foreclosure of a materialman's lien. The facts were stipulated, and upon them the court rendererd the judgment complained of. The stipulation of facts is under agreement of the parties made a part of the judgment-roll, and may here he considered as the findings upon which the judgment was based. (Muller v. Rowell,...
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This is an action to foreclose a mortgage, and the only question in the case is as to which of two mortgages on the same land has priority. The facts are in substance as follows: On October 8, 1893, the defendant, W. H. Fox, executed to the defendant, Stella Payne Meads, his promissory note for seven hundred and fifty dollars, and a mortgage to secure payment of the same on one hundred and sixty a...
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On October 25, 1895, the defendant, as the administrator with the will annexed, published notice to creditors in the estate of Susan Berg, deceased, directing all creditors to present their claims within four months after the first publication of the notice. *66January 2,1896, and before the time for presenting claims had expired, John Sundstrom died, without having presented his claim against the...
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This is an appeal from an order of the superior court in and for the county of Santa Barbara, granting a writ of assistance in favor of Alex. Lyall and against the appellant. The facts disclosed by the record show that on the sixth day of June, 1890, George McCaughey, defendant’s intestate, executed to H. J. Finger a mortgage upon the land described therein, to secure the payment of his promissory...
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Appeal from the judgment, the evidence being brought up for review by a hill of exceptions. Plaintiff sued David T. Pierce and Emeline Wallace, averring the following facts: That one David T. Pierce, for a valuable consideration, made and executed to plaintiff his promissory note for the sum of eight thousand dollars, with interest at the rate *69of eight per cent per annum until paid. “That, for ...
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This is an action of claim and delivery to recover certain sheep. The defendant, who was sheriff of Kern county, justified under a writ of attachment issued in a suit brought by John H. and Harry E. Wise against J. Y. Caldwell. The sheep were attached as the property of Caldwell. Judgment was afterward entered in favor of the plaintiffs in the attachment suit, and the sheep were sold to satisfy th...
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This action was commenced in the superior court of the county of Fresno, on December 16, 1895. The purpose of the action was to have it adjudged that the plaintiff was the owner and entitled to the possession of an undivided one-third interest in all the property, business, proceeds, and profits *79of an alleged copartnership, and for an accounting. Five parties were named in the complaint as defe...
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Defendant is a corporation organized under the laws of this state. Plaintiff, who was a member of the corporation, filed his petition for a writ of mandate, alleging his illegal expulsion by the defendant society, and praying that he be restored to full membership, as theretofore. The plaintiff had judgment in the lower court as prayed for, and the defendant appeals from the judgment. It is not co...
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This appeal is prosecuted by the people to test the validity of an order of the superior court sustaining a demurrer to an information filed against the defendant Knox. This information is based upon section 529 of the Penal Code, which declares that “every person who falsely personates another, and in such assumed character either becomes bail or surety for any party .... is punishable,” etc. By ...
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Action to recover $1,400 and interest for the alleged wrongful taking and sale of certain personal property of the plaintiff. Judgment of dismissal was entered as to C. S. Laumeister, one of the defendants. Final judgment was rendered in favor of plaintiff and against defend*864ant Jacob Steen for $943.41 and costs, and in favor of the deféndants S. Barnet, I. Blum, Joseph Blum and J. H. Jacobs fo...
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Action against defendant, as administrator, for money expended as funeral expenses of deceased, and for expenses of administration and traveling expenses, while plaintiff was special administrator of defendant estate. As a second cause of action plaintiff claims for services in nursing and providing board and lodging for deceased in his lifetime. Defendant demurred to the complaint, alleging insuf...
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The defendant was convicted of the crime of rape, charged to have been committed upon a child thirteen years of age. The defendant contends that the girl consented, but that the offense was not consummated. Upon these two points there was a conflict between the defendant and the prosecutrix. A reversal is claimed on two grounds: 1. It is contended that the court erred in refusing to instruct the j...
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The defendant has been convicted of violating an act of the legislature commonly known as the "train wrecking act.” He was charged by the information with unlawfully boarding a certain passenger train with intent to rob said train. It is claimed that the act is unconstitutional in this, that it violates that provision of the constitution which declares that every act of the legislature shall embra...
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Friedlander owed the Bank of California about five hundred thousand dollars, and Chapman owed the bank about two hundred thousand dollars. Each gave his notes to the bank for the amount of his indebtedness, with the other as an indorser. To secure the payment of all these notes Chapman conveyed to the bank about seventy-four thousand acres of land'and certain collateral securities. Friedlander con...
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Action upon a street assessment. Section 5 of the street improvement act (Stats. 1889, p. 162) provides that the owners of three-fourths of the frontage may elect to take the work and enter into a written contract therefor, at the price at which it was awarded, within ten days after the first posting and publication of the notice of award; and that, if they fail to elect to take the work and enter...
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This is an action to quiet the plaintiff’s title to a quarter section of land in the county of Fresno. The plaintiff had judgment, and the defendants appeal therefrom on the judgment-roll, without any statement or bills of exceptions. The material facts of the case, as found by the court, are in substance as follows: In April, 1891, plaintiff entered into possession of the said quarter section of ...
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This action was brought to restrain and enjoin the issuance of a deed by the street superintendent of Los Angeles. A general demurrer was interposed to the complaint, which was sustained. Thereupon the plaintiff declined to amend, and, judgment having been thereafter entered, took this appeal. Since the appeal he has redeemed *867the property by paying the taxes, costs and percentage required. The...
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This action was brought to restrain and enjoin the issuance of a deed by the street superintendent of Los Angeles. A general demurrer was interposed to the complaint, which was sustained. Thereupon the plaintiff declined to amend, and, judgment having been thereafter entered, took this appeal. Since the appeal he has redeemed *867the property by paying the taxes, costs and percentage required. The...
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On April 11, 1895, the parties entered into a contract whereby plaintiff agreed to buy and defendant agreed to sell certain salt hides, calfskins, pelts, and tallow of animals previously slaughtered, and thereafter, during said month of April, to be slaughtered by defendant in the course of his business of butcher. Plaintiff then paid to defendant the sum of two hundred dollars, and took the follo...
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John C. Edgar was adjudged guilty of contempt by the superior court of San Diego county, and was punished therefor by a fine of two hundred dollars, with the alternative of imprisonment. This hearing is under his application for a writ of habeas corpus. The facts giving rise to the alleged contempt are the following: One Joseph Japhet Ebanks was convicted of murder in the first degree before the s...
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These appeals were argued and submitted together. ■ They involve identical questions, and the evidence is substantially the same in each case. They may, therefore, be considered and disposed of together. The appeals are from the judgments and from the orders denying the defendants new trials. The questions involved are: 1. The validity of an ordinance of Inyo county requiring the procurement of a ...
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The city of Los Angeles brought suit to condemn land for a public street. Judgment passed for plaintiff, and from this judgment and from the order denying defendants’ motion for a new trial defendants appeal. The city instituted its action under the provisions of part III, title VII, of the Code of Civil Procedure. Before the commencement of the suit it had not resorted to the steps and processes ...
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This is an appeal from a judgment of mandate which ordered the treasurer of Big Rock Creek Irrigation District to pay certain warrants, issued by the district, from the funds then in the treasurer’s hands. Under authority found in certain provisions of the Wright irrigation act, four thousand dollars was raised by a special tax upon the property of Big Rock Creek Irrigation District. This tax was ...
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The plaintiff brought this action to recover a sum of money, with interest, alleged to be due for lumber sold and delivered by him to defendants. The answer denied all the averments of the complaint. The court found: “That on the eighth day of November, 1892, the plaintiff, at the instance and request of the defendants, sold and delivered to said defendants lumber of the agreed price and value of ...
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On June 1, 1887, the defendant M. L. Wicks executed to Mary Connolly and Patrick Connolly his promissory note for $20,000, bearing interest at the rate of ten per cent per annum, and to become due ¿June 18, 1888; and to secure payment of the note he, on the same day, executed to them a mortgage on two hundred and eighty acres of land, which contained the following clause: “It is agreed that any fo...
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This appellant complains that his motion in arrest of judgment should have been granted. The contention is based upon an alleged defect in the information, wherein it fails to allege that the acts done by appellant which constitute the burglary were done “contrary to the force and effect of the statute in such cases made and provided.” No demurrer was interposed to the information, and under those...
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This action was brought in the superior court of the county of Butte against the heirs, devisees, legatees, and representatives of the heirs, devisees, and legatees of 0. C. Pratt, deceased, who died testate October 24, 1891, being at the time of his death a resident of said Butte county, for the purpose of having it adjudged that the plaintiffs are the owners as trustees of certain premises in th...
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This action is brought hy the plaintiffs, trustees under the last will of O. C. Pratt, deceased, to obtain a decree of the court determining whether an annuity, provided in said last will to be paid to Lizzie E. Pratt, widow of said O. C. Pratt, deceased, shall he so paid from the date of the death of said deceased, viz., from October 24, 1891, or from the date of the decree of distribution, viz.,...
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It is contended by counsel for petitioners that this court, having no original jurisdiction, is powerless to render the judgment complained of, and that the summary proceedings herein adopted constitute a denial of the right to a day in court and trial by jury. The statute provides, in effect, that if the appeal be abandoned, by a failure to file the transcript within the time prescribed by law, t...
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This is an appeal from an order of the superior court in and for the county of Butte settling the third annual account of A. H. Crew and F. C. Lusk, trustees, for the year 1895, under the last will and testament of O. C. Pratt, deceased. The appellants filed exceptions to the report, which were overruled upon the hearing, and an order entered approving the account, from which order this appeal is ...
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This is a motion to dismiss the appeal of George W. Burnett and Annie Frances Burnett from the final judgment and also from an order refusing to vacate an order for a writ of assistance. The action was for the foreclosure of a mortgage, and one William Nieol was a codefendant with the appellants. Nieol appeared in the action, and set up his claim to a lien subsequent to the lien of the plaintiff. ...
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The defendant in error brought this action to enforce the liability of plaintiff in error as a stockholder in the Clyde Banking Company, a corporation organized under the statutes of the State. Emerson is a nonresident, and the action was begun by an attachment levied upon land. The defendant appeared specially and moved the court to quash the writ of attachment, first, because the clerk had speci...
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I. The right of the trial court to grant leave to file pleadings out of time is found in section 106 of the Code of Civil Procedure. This section of the Code leaves the matter of allowing pleadings to be filed out of time wholly in the discretion of the trial court. Did the trial court abuse its discretion in permitting the answer to be filed? The record is wholly silent as to what showing was mad...
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The defendant was prosecuted upon information for a violation of the Prohibitory Liquor *335Law. The jury found him guilty as charged in the third, fourth and fifth counts of the information. He now appeals. The counts on which the defendant was convicted are as follows : “Third Count: That on or about the fourth day of November, 1896, in the county of Lincoln and State of Kansas, one Luther Knoby...
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This case is before the court upon a motion to correct the case-made. When the case-made was prepared, the instructions of the court had been mislaid and could not be found, and a statement to that effect was inserted in the record. We are now presented with a certificate of the judge that the instructions have been found ; a copy of them has been attached to said certificate, and we are asked to ...
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I. Was the notice given of the tax sale a sufficient notice under the statutes? The notice as published reads : “Notice is hereby given that the following described lands and town lots, or so much thereof of *296each tract as may be necessary for that purpose, will on Monday, October 27, 1890, ,and during the next succeeding days thereafter, be sold at public auction at my offiee in the courthouse...
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There are two questions presented in this case. The first is, Was the plaintiff’s action upon its note and mortgage barred by the Statute of Limitations ? This contention is based upon a condition in the mortgage which is in substance that, *318whether the holder elect to pay the taxes and insurance premiums upon the mortgagor’s default or not; it was distinctly understood that the legal holder mi...
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The only question in this case is, Does an instrument, in form a warranty deed, and executed, acknowledged, delivered and recorded as such, become a will, or testamentary in its character, by reason of the insertion therein of these words : “ Conditions of this deed is such as said party of the second part that this land shall not be incumbered in any way, or this deed shall be void. The party of ...
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This action was originally brought in the District Court of Saline County by-J. N. Davis, the defendant in error, against the German Insurance Company of Freeport, Illinois, the plaintiff in error, to reform a policy of insurance issued by said Company to Sarah E. Davis by inserting the name of J. N. Davis as insured instead of Sarah E. Davis, and also to collect one thousand dollars for a loss su...
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On November 9,1889, John Richardson and Jennie Richardson, his wife, made a loan of six hundred dollars, at eight per cent, interest per annum payable semiannually, of the New England Loan and Trust Company, for which they executed and delivered to the Company a bond for six hundred dollars, payable November 1, 1894, with interest at six per cent, per annum payable semiannually, this interest bein...
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This action was begun in the District Court of Cloud County, May 22, 1894, to recover of the defendant C. F. Hostetler as principal, and the other defendants as sureties, upon the official bond of C. F. Hostetler as clerk of the district court of Cloud County, for moneys which came into his hands as such clerk during his term of office beginning in January, 1887, and ending in January, 1889, and w...
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The plaintiff brought an action against the defendant upon an undertaking to stay execution upon a judgment of a justice of the peace. The judgment in the case was upon three promissory notes aggregating the sum of $326, for which amount the plaintiff obtained judgment against one A. L. Barnes. Under the authority of Ball v. Biggam (43 Kan. 327), the judgment was void for want of jurisdiction of t...
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The plaintiffs in error, publishers of a paper in Graham County, published a notice of delinquent tax sales for 1893. The last publication was in the issue of September 1, 1893. They failed to file the proof of publication, as required by paragraph 6957 of the General Statutes of 1889, within fourteen days thereafter, but did file the proper affidavit on the nineteenth day of September. By this fa...
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This action was brought in the District Court of Saline County, by the plaintiff in error Rothschild, against the defendants in error, to foreclose a mortgage on real estate. The petition alleges that the plaintiff’s mortgage “is a first lien upon said real estate, subject to the balance due upon one certain mortgage of two thousand dollars to John Kraft.” The copy of the mortgage attached to plai...
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The only question in this case is, Can a sheriff or constable levy upon and sell, under execution, intoxicating liquors? It seems clear to us that this question must be answered in the negative. It is agreed that, if the law is so, the judgment of the court was proper and ought to be.affirmed. The Supreme Court has held, in Korman v. Henry (32 Kan. 49), that a mortgage upon intoxicating liqors, ex...
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This was an action brought by S. A. Hoyt, plaintiff in error, against C. A. Carpenter and J. O. Modlin, defendants, on the following promissory note : "$500. Burr Oak, Kan., February 1, 1894. One year after date I promise to pay to the order of Hester L. Doty, five hundred dollars at Burr Oat, *306Kan. Value received. With interest at ten per cent, per annum. G. A. Carpenter. [Indorsed] Hester L. ...
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This was an action brought by J. W. Higgins against the Board of County Commissioners of Mitchell County. The case came up on appeal from the action of the Board of County Commissioners, and was tried on an agreed statement of facts. The plaintiff claimed for his services as treasurer, for the quarter next preceding the first day of July, 1895, the sum of five hundred dollars, less $4.95 which he ...
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This was an action in replevin, brought by B. F. Surface, plaintiff in error, against John Leffingwell, defendant, for the recovery of personal property. The case was tried before the court and jury. At the close of the testimony the court discharged the jury and rendered judgment against the plaintiff for costs. The plaintiff filed a motion for a new trial, which was overruled, and he now present...
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after making the foregoing statement, delivered the opinion of the court. *5731. The contention for the defendant is — first, that there was no sufficient proof of payment of the premium, in accordance with the terms of the policy; and, second, that there was no legal evidence that notice of the fire or proof of loss had been given to the defendant company, as required by the terms of the policy. ...
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delivered the opinion. Complaint was filed with the Board of Medical Examiners, entitled, “State of Oregon, on relation of Oswald H. Beckman, E. Jansen, M. M. Walker, and Jay Tuttle, Plaintiffs, v. O. B. Estes, Defendant,” charging the defendant with dishonorable and unprofessional conduct as a practicing physician. All the members of the board seem to have signed the complaint, and were complaina...
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delivered the opinion of the court. The cause of action, as exhibited by the complaint, is, in substance, as follows: That in January, 1882, the *563plaintiff was the owner of an undivided half of thirty-one acres of land at Green’s Station, and that defendant was the owner of an undivided one half of fifty-seven acres at what is now the town of Dillard, and thirty-four acres at what is now the to...
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after setting forth the facts, delivered the opinion of the court. It is somewhat difficult to determine just what was accomplished by the order of the court below respecting the demurrer. The further and separate defense does not tend to defeat plaintiffs’ cause of *15suit, which is for the reformation and foreclosure of their mortgage. Their right to the remedy invoked exists in spite of anythin...
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delivered the opinion. *871. In the assignment of errors contained in the printed abstract of the record no exception to that part of the decree in relation to the amount claimed to have been paid by the assignee on account of road tax is noted, and, such being the case, that item will not be considered: Rule 10, 24 Or. 600 (37 Pac. 8). 2. Considering the other items of the final account to which ...
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Error is predicated of the action of the county court in two particulars: First, in the dis-allowance in part of Weister’s claim for salaries from November 1, 1892, to the date of filing his final account; and, second, in removing him as administrator, because the proceeding was not one instituted under the statute for the especial purpose, nor by citation to the administrator to show cause/ again...
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delivered the opinion. This is an action by Anna Finseth against the City and Suburban Railway Company to recover damages sustained in consequence of an injury received while crossing over a roadway alleged to have been negligently constructed by defendant. The facts are: That in June, 1894, defendant was the owner of and operated an electric street railway in the City of Portland, the line of its...
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Respondents recovered judgment in the district court for Bear Lake county against Francis Wilcox and George E. Wilcox, partners as Francis Wilcox & Son, and J. C. Rich. Execution was issued upon such judgment, and levied upon certain real estate claimed to be owned by the appellant, and this action was brought to enjoin the sale of said real estate thereunder. The court finds as matter of fact: “T...
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Gaffney was appointed assignee of the Bank of Genesee, an insolvent debtor, under the statutes of Idaho. S. S. Denning, Esq., and Warren Truitt, Esq., it would seem by The request of the assignee, appeared in certain matters before the courts on behalf of said assignee and the estate of insolvent. No regular appointment seems to have been made of an attorney by the assignee; but that certain servi...
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.This is an action of ejectment. The complaint avers title, the right of possession, and possession by plaintiffs, and ouster and continued withholding of possession by defendant. Upon the trial, plaintiffs offered in evidence, to establish. their title, a decree of foreclosure and sale in a ease entitled "William McMasters v. Jacolo Sigrest et al.,” to the introduction of which defendant objected...
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This proceeding was _ commenced in this court to review an order made by the district court of the second judicial district, in and for Nez Perces county, striking from the files, in the case of J oe Broncheau et ux. against Harry L-ydon, in said district court, a bill of exceptions presented by the said defendant, and settled by the judge of said district court. -To the. writ of certiorari hereto...
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This suit was brought to foreclose a mortgage on real estate, and prosecuted to judgment. The mortgaged premises were sold under a' decree of foreclosure, and bid in by the mortgagee. After the period of redemption had expired, a sheriff’s deed was duly executed, and thereafter possession of said premises was demanded, which the appellant, Thyrza C. McGregor, refused to grant. Thereupon the respon...
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(After Stating the Facts.) — The correctness of the order of the district court in granting to the respondent a writ of assistance depends upon the validity of the judgment of foreclosure in this case. The amendment of the complaint was evidently made for the purpose of alleging the existence of facts which were not alleged in the original complaint, and which could not, under the original complai...
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This is an' appeal from an order, made after judgment, on contested motions, to retax costs. This *488cause was heretofore brought to this court on appeal, and this court dismissed the former appeal with the suggestion that the district court proceed to try the issues made by the pleadings, and directed that the costs should abide the general result. (See ante, p. 21, 46 Pac. 829.) The cause was t...
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This action was originally brought by Fred N. Hallett, as plaintiff, against the defendant, R. E. Lar-*494com, for the recovery of $599:42, money alleged to have been advanced for the defendant, at his special instance and request, while said Hallett was acting as the agent for the defendant in leasing and taking care of certain lands belonging to defendant, situated in Nez Perces county, and coll...
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This is an appeal from an order granting a new trial. On the third day of September, 1895, the plaintiffs, being partners under the firm name of Hallett & Morrison, purchased of one C. J. Landon “seven thousand bushels of O. K., No. 1, marketable wheat, to be delivered at top of tramway on or before sixty days; loss or damage by fire to be carried by the party of the first part.-” This sale was ev...
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In the preparation of the transcript in this case there does not seem to have been even an attempt to comply with the rules of the court. There is scarcely a requirement of the rules that has not been ignored. Some latitude is usually extended in criminal cases in matters of appeal, both by the statutes and by the rules of 'court, but never to the extent assumed in this case. We should dismiss the...
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This action was brought by the plaintiff to restrain the defendant corporation from selling the shares of said plaintiff in said corporation for the purpose of paying-assessments levied on said shares. Trial was had before the district court without a jury, and judgment rendered in accordance with prayer of the plaintiff’s complaint, perpetually enjoining defendant corporation from selling, or in ...
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This action was brought by the state to foreclose a mortgage against Thomas Fitzpatrick and James Gadsden. The state, through the state board of land commissioners, made the loan, secured by said mortgage, from the permanent school fund of the state, under authority given said state board by the constitution and an act entitled “An act defining the duties of the state board of land commissioners, ...
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Motion by W. H. H. Spafford to dismiss an appeal taken by the White River Valley Land and Live Stock Company, Appellants, and Mary C. Millspaugh, Intervenor. Appeal dismissed. Counsel for respondent moved this court to dismiss this appeal on the ground that no notice of appeal was served on the respondent. The record shows that the notice and undertaking were filed on the 25th day of March, 1897, ...
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The facts sufficiently appear in the opinion. This suit was instituted in May, 1894, to set aside certain conveyances of real estate alleged to have been made by E. *Page 176 Crane to his daughters, Amelia H. Howard and A. G. Stiles, for the purpose of defrauding creditors. The defendants; E. Crane and Mary E. Crane, were duly served with summons and appeared to the action by attorney, and demurr...
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STATEMENT OF FACTS. In May, 1892, the United States National bank held thirty thousand dollars of stock in the National Bank of Guthrie, as collateral security for a loan of that amount and brought suit against that institution, L. DeSteiguer, its president, and its other officials, alleging in the petition, sworn to by a stockholder, among other things, that the latter bank...
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Opinion of the court by Owing to the peculiar complications which have arisen in this case, caused somewhat by the matter contained in the dissenting opinion filed herein by Mr. Justice Tarsney; which said opinion is sought to be made a part of plaintiff in error's original application and motion for rehearing by the tenth assignment contained therein, which is as follows: "We have examined the di...
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This is an appeal from an order of the board of commissioners of Idaho county allowing A. W. Talk-ington, clerk of the district court, $240, quarterly • salary for a deputy clerk. The appeal was taken to the district court, and the action of the board was sustained. Thereupon an appeal was taken to this court. It was contended that said allowance for a deputy clerk was illegal: 1. Because any allo...
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Appellant was indicted in the district court of Apache County in April, 1893, and accused of the crime of murder in the killing of one Ike Lee. He pleaded not guilty, and at the April term, in 1894, of said court, was tried, found guilty of murder as charged in the indictment, and sentenced to the territorial prison for forty years. A motion to set aside the verdict and for a new trial was made by...
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It appears from this record that the plaintiff, the Eio Grande Western Railway Company, was organized on June 24,1889, by the consolidation of the Denver & State Line Railway Company, a then recent corporation of Colorado, and the Denver & Rio Grande Western Railway Company, a corporation of Utah, organized July 28, 1881. The plaintiff alleged in its complaint that it was authorized to build a rai...
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In this case a motion has been made to dismiss the appeal on the ground that all the adverse parties have not been served with notice, as required by section 3636, Comp. Laws Utah 1888. It appears there were a number *120of defendants in the case, only two of whom — Samuelson and Cannon — appealed. The appellants served notice of appeal on the plaintiff in whose favor judgment had been entered, bu...
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It appears from the record in this case that on June 23, 1896, James H. Bacon, as the owner of the Bank of Salt Lake and the First Bank of Mercur, made a written assignment of all their property to Frank W. Ross; that, two days thereafter, the plaintiffs, by Charles C. Dey, their attorney, filed a complaint, asking for the appointment of a receiver of the property assigned; that, on the 29th day o...
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This action was brought by the administrator and heirs of William F. Anils, deceased, to determine the adverse claims of the' defendants ’in and to an undivided two-thirds interest of the I X L lode and mine, and for an accounting of the defendant Thornton for the amount of mineral ores which it is claimed he took from the mine, and converted to his own use. In the answer all the material allegati...
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Under a general allegation of damages the plaintiff may prove and recover only general damages ; that is, such damages as naturally and necessarily result from the acts or omissions complained of. (Phil. Code PI. § 424.) The law implies general damages from certain facts stated, and where there is such an implication there need be no allegation of damages, beyond stating the amount claimed. But if...
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During the trial of the case the court permitted the defendant to ask the witness A. B. Johnston, the *324assignor of the property mentioned in the complaint, on cross-examination, if he had not stated, at different times and places mentioned, after the assignment, to certain persons, that at the time he made the assignment he did not owe one Hall anything; Hall being one of the preferred creditor...
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The vein or veins at the point where the ores are in dispute lie about 300 feet from the westerly end line of the Barus lode claim, as located, and underneath its located surface. Appellant contends that, even though the Johnstown owner, under its patent, acquired the surface of the ground in controversy containing said ores, nevertheless the Barus patent conveyed all the veins whose apexes were w...
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Section 4049 of the Political Code is as follows : “All property held or used in any trade, occupation, or profession for which a license is required by the provisions of this chapter is liable for such license, and subject to a lien for the amount thereof, which lien has precedence of any other lien, claim or other demand. * * *” Section 1365, Fifth Division, Comp. St. 1887, contains *346substant...
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Action to restrain defendants from entering upon block 56^, in the city of Santa Barbara, which it is alleged in the complaint defendants threaten to do for the purpose of grading Laguna street, on which said block fronts, and from excavating and removing soil from said block and removing plaintiffs’ fences inclosing the same. By stipulation, the case entitled Julia Gr. Baker versus the same defen...
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The complaint was filed May 10, 1893. The summons was served on all the defendants except Gillen, who has not been served, on May 4, 1896. On May 5, 1896, defendant Stivers served notice of motion to dismiss the action on the ground of unreasonable delay in the service of the summons and in the prosecution of the action. Defendants Lial and Lyons gave a similar notice, and on June 1, 1896,-the cou...
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When this case was in Department the judgment and order appealed from were affirmed upon an opin-^ ion prepared by Mr. Commissioner Haynes. After further con-' sideration, we are satisfied with the conclusion there reached, and with the opinion then delivered as to the points therein discussed. But the appeal was inadvertently considered as though the motion for a new trial had been based upon a s...
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Two appeals entitled and numbered as above are pending in this court. Each is from an order of the superior court fixing a day for carrying into execution a sentence of death. The case is this: The defendant was convicted of murder in the first degree by a verdict involving the extreme penalty. He appealed from the judgment and from an order denying his motion for a new trial, but the judgment and...
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The district attorney instituted this action in the name and on behalf of the county to recover from the treasurer of the county, and from his bondsmen, moneys alleged to have been paid on illegal claims, together with a penalty of twenty per cent upon the amount so paid. Defendants moved to dismiss the action upon the ground that it was instituted without authority, and also interposed a general ...
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Action for damages alleged to have resulted from a collision on defendant’s railroad at the station of Orange. The cause was tried by a jury, and defendant had the verdict. Plaintiff appeals from the order denying motion for a new trial, and on a statement of the case. The complaint alleges that, while plaintiff was a passenger on the car of defendant, a collision occurred at said station, ‘ ‘ cau...
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A decision was rendered in Department directing the reversal of the judgment obtained by plaintiff in this cause, on the ground that the case was not cognizable in the superior court, the amount in controversy appearing on the record as presented to be less than three hundred dollars. Subsequently, on the petition of respondent, accompanied by a suggestion of diminution of the record and a certifi...
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after making the foregoing statement, delivered the opinion of the court. Assuming, for the purposes of this case, that a court of equity would, upon the facts alleged in the complaint, if shown to be true, set aside and vacate the judgment rendered in the action at law referred to in the pleadings, and that the proceedings in such action subsequent to the judgment are not a bar to this suit, we p...
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Opinion by This is a suit against the Nehalem Mill Company and Frank Patton to foreclose a mortgage alleged to have been given by the defendant company on February 8, 1894, to the plaintiffs, as trustees, to secure the payment of certain sums due its employees and persons from whom it purchased material. The decree being in favor of the plaintiffs, defendant Patton appeals. The facts are that the...
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The relator seeks by this action a mandamus to compel the levy of a special tax in Sheridan County in excess of the lev^ of twelve mills for county revenue, or the issue of county bonds for the purpose of paying a judgment secured by the relator against the county upon certain warrants issued during the years 1893, 1894, and 1895. The petition alleges that the warrants were duly issued upon valid ...
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The question in this case briefly stated is whether under our statutes the defendant assignee is a ‘ ‘ grantor ’ ’ within the meaning of Sec. 3, Chap. 69, Laws of 1888, and if *223so, is the section, in so far as it affects assignees, in conflict with, and repealed by Section 13, of the assignment law, passed in 1890 ? The principles involved, independent of the statutory provisions above set out,...
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In this case the relator, the city of Cheyenne, filed its petition in the district court for the county of Laramie, alleging its character as a municipal corporation, and that prior to the first day of March, 1897, it was allowed by the laws of the State of Wyoming, to collect the taxes due to itself for municipal purposes, and, among other things, to sell real estate within its corporate limits u...
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This action was brought by Joel B. Mayes, as Principal Chief of the Cherokee Nation and for its benefit, against the Cherokee Strip Live Stock Association and a number of persons alleged to be members of or connected with the Association. Subsequently, C. J. Harris became Principal Chief of the Cherokee Nation and the action was revived in his name. The action is upon a contract to lease a large *...
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This was a proceeding in mandamus, brought to contest an election held for the purpose of determining the location of the county seat of Gray County. In the alternative writ it is alleged that, by a vote of the electors of the county, the county seat was, on February 13, 1887, located at the town of Ingalls; that on January 10,'1893, a petition was presented to the Board of County Commissioners, r...
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On the twenty-fifth of September, 1893, the Bank of Herington recovered a judgment against the plaintiff in error, Mary E. Teats, for two thousand dollars and costs. On this judgment an execution was issued and returned unsatisfied. On the sixth of February, 1894, on motion of the plaintiff, a citation was issued requiring the defendant to appear at the court house in Abilene, on the fourteenth of...
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The Southern Kansas Railroad, now a part of the Atchison, Topeka & Santa Fe railway *727system, was built through, the town of Neosho Rapids, Kansas, in 1882. It borders closely upon Seventh Street in the town named. On the opposite side of Seventh Street, the defendant in error owned and kept a hotel building and grounds. The Railroad Company dug a ditch, on its right of way, parallel to and very...
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This was an action of replevin for a stock of goods. Frank Barnett was at one time the owner of the stock. He was indebted to Rosa Ryba in the sum of five thousand dollars, evidenced by promissory notes which, by her direction, he had executed to the defendant in error, her son. Barnett became financially embarrassed, and by agreement with the defendant in error gave to him and in his name a bill ...
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This was an action by Mary W. Johnson upon a promissory note for three thousand dollars executed by 0. J. Jones and wife to the *746Farmers’ Loan & Trust Company and by that Company sold and assigned to her, and also to foreclose a mortgage, on city property, given by Jones and wife to secure the payment of the same. A number of persons who claimed an interest in the real estate were made parties ...
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The Commissioners of the Public School Fund drew on the defendant, as State Treasurer, orders for ten thousand dollars, payable out of the permanent school fund, in favor of the plaintiff, to pay for certain refunding bonds of Graham County, which the Commissioners had agreed to purchase.- These *793orders were presented to the State Treasurer to be registered, as required by paragraph 6658 of the...
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This was an action of ejectment. Thomas Van Meter was at one time the owner of the land. In 1860, a judgment was recovered against him, and the land was sold for its payment. Since 1861, the land has been in the actual, open possession of the original purchaser or her grantees, either in person or by tenants. For the first eleven years this possession was by residents of Kansas; for the next ten y...
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The defendant was convicted of the crime of rape, committed on Gertrude Beard, a girl under the age of eighteen years, and sentenced to confinement in the Penitentiary for the term of twelve years. From this conviction he appeals. The first alleged error is in overruling the defendant’s challenge to the juror W. A. Gage. An examination of the juror failed to disclose that he entertained a fixed op...
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This was an action brought by the heirs of William Ments, deceased, to recover from F. G. Hentig and W. W. Manspeaker two lots in the city of Topeka. The plaintiffs prevailed in the District Court, when Hentig instituted a proceeding in error in the Court of Appeals, Manspeaker declining to take further part in the controversy. There, the judgment of the trial court was affirmed (5 Kan. App. 879),...
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This case was commenced before a justice of the peace and-appealed to-the District Court of Cowley County. The plaintiff in his bill of particulars alleged, in substance : “That on the seventh day of July, 1890, plaintiff *791in error owned and operated' a railroad extending from southeast to northwest through Cowley County and across a public highway which extended east and west from Arkansas Cit...
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The statement of plaintiff in error is adopted substantially as the statement of facts in the opinion. C. A. Bentley & Co. began an action in the District Court of Reno County to foreclose a mechanic's lien on lots 20 and 22, South Main Street, in the city of Hutchinson, claiming that they were the original contractors; afterward, they furnished materials under contract, and within four months of ...
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This action was commenced by the Guthrie National Bank and J. W. McNeal, its president, against John A. Eaton and Thomas J. Eaton, partners under the firm name of the Farmers’ Bank, to recover the sum of $1525, which said plaintiffs claimed by virtue of a chattel mortgage: The Eatons filed an answer showing that they had in their possession the amount of money sued for, resulting from the sale und...
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This action was commenced in the District Court of Harper County by defendant in error, against the plaintiffs in error, claiming damages in the sum of fifteen hundred dollars for the alleged unlawful and forcible ejectment of the defendant in error from his premises. The case was tried to a jury, a verdict returned and judgment rendered for fifteen hundred dollars against defendants below, B. A. ...
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Defendant, a hack driver, was convicted in the police court of the City of Emporia, and afterwards in the District Court on appeal, of violating *809an ordinance of said City, which, ordinance, with its title, is as follows : “An Ordinance to prohibit hotel porters and runners, hack and ’bus men, and peddlers, from soliciting custom on the platform of the passenger depot of the Atchison, Topeka & ...
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In this action the plaintiffs sought to recover from the defendants Brown & Co., a firm composed of W. H. Brown and N. E. Griffith, the sum of eighteen hundred dollars and interest, on account of a certain real-estate transaction. Plaintiffs purchased, under a written contract, a tract of land in Lyon County, from the agent of defendant Lewis, on June 6, 1887. On June 8, 1887, Lewis, not being adv...
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This is an action upon an undertaking given in pursuance of the statute to stay execution, pending proceedings in error, upon a judgment recovered by Chester B. Bradley against the Syndicate Improvement Company in the District Court for Natrona County. That judgment was affirmed by this court. It having been determined that there was no reasonable cause for the proceeding in error, this court allo...
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The questions reserved for the decision of the court arise upon a demurrer to the petition. In substance the allegations of the petition are, that the Park City Bank was on the 12th day of June, 1893, and for a long time theretofore had been a banking corporation, created and existing under the laws of Utah Territory, and under the provisions of Chapter IX, Part 4, Volume 2, of the Compiled Laws o...
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This case is brought upon the same cause of action as that of David C. McLaughlin, receiver, against the same defendant, this day decided. Edward McLaughlin brings the suit on his own behalf and all other creditors of the Park City Bank to enforce the statutory liability of a stockholder of said bank, under the Utah statute. The petition contains no allegations concerning the suit in Utah brought ...
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The facts sufficiently appear in the opinion. This action was brought by F. B. Adams, as plaintiff, against Archer Baker and Lucy Baker, his wife, as defendants. The object of the action was to secure the reformation and foreclosure of an alleged mortgage executed by Archie Baker to said plaintiff. The plaintiff alleges in his complaint, in substance and in brief, that on the 9th day of October, 1...
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The facts sufficiently appear in the opinion. Action for malicious prosecution. The case was tried by the court without a jury. Respondent recovered judgment for $305 and costs. After respondent had introduced his testimony in chief, appellant moved for a non-suit upon the ground that there was no evidence tending to show that the prosecution was maliciously instituted, or without probable cause, ...
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This is an action on a policy executed by the defendant to Erastus Christofferson, insuring his house against fire, in the sum of $1,000. The policy contained two provisions on which the defendant bases its defense. The language of the first is, “ Loss, if any, payable to Edwin A. Peck, mortgagee, as his 'interest may appearand the language of the second is, “ This policy * i:‘ * shall be void * *...
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This action was commenced in the district court of Weber county, to recover damages for personal injuries, which the plaintiff claims he sustained through the negligence of the defendant. Before and at the time of trial the defendant challenged the jurisdiction of the court to try the case by motion and affidavit, but the motion was denied, the cause tried, and a verdict and judgment rendered in f...
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At the trial of this cause, the defendant objected to the introduction of any evidence, on the ground that the amended complaint did not state a cause of action. The objection was overruled, and the action of the court is ¿assigned as error, and raises the most important question in the case, which is whether the plaintiff has a right to recover, under the defendant’s by-law in force at the time h...
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This is an appeal by the plaintiff from a judgment for the defendant. The plaintiff alleged in his complaint that on the 6th day of November, 1888, he delivered to the defendant, an attorney at law, 54 promissory notes, which he owned, giving a list of them; that the defendant agreed to bring suit and obtain judgment upon such as he could not collect without suit; that plaintiff agreed to advance ...
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Upon the undisputed facts before it, was the trial court justified in submitting to the jury the question of whether or not plaintiff had sold the goods in dispute outright to the firm of Genzberger, Barnett & Co. or had consigned them only ? We think not.. It was the duty of the court to have decided, as a matter of law, whether the goods aforesaid had been sold or consigned. There is nothing in ...
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The most important piece of evidence introduced upon the trial was a paper purporting to be the request of W illiam Hamilton to the Covenant Mutual Benefit Association to change the beneficiary in his certificate from the name of his daughter, Mrs. E. D. Baxter, the plaintiff herein, to that of his wife, Mrs. Kate M. Hamilton. This paper was signed “William Hamilton,” and just below this signature...
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The Legislature of Montana, by an act approved March 4, 1897, enacted a law establishing a tax on direct and collateral inheritances. The law substantially provides that “all property” which shall pass by will, or by the intestate laws of the state, from any person who may die seised or possessed of the same, shall be, and is, subject to a tax at a fixed rate on every $100 of the clear market valu...
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William Eaton resided in Missouri. He was the owner of lands in that State and in Illinois, Colorado and Kansas. In 1877, he executed a Avill disposing of his property. By the terms of this will a life estate in all his lands was devised to his son Lanson, with remainder to the “heirs of his [Lanson’s] body.” In 1880, the testator died, at his residence in Missouri. His will was probated in that S...
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This is an appeal from a sentence of conviction for robbery. Just after dark on the twenty-third of February, 1897, two masked men entered the house of Jacob Willems, a farmer residing in the northeastern part of Reno County, and robbed *784him and his son, Jacob J. Willems. They took eighty-five or ninety dollars in gold and paper currency belonging to Jacob Willems, and one dollar and eighteen c...
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This was an action of ejectment brought by John Schrimpcher and more than forty others, as plaintiffs, claiming to be heirs of Carey Rodgers, deceased, a Wyandotte Indian, against John S. Stockton and ten other defendants. The plaintiff sought to re*759cover two tracts of land allotted to Wyandotte Indians in accordance with the treaty of 1855. One tract was conveyed by patent to Margaret C. Cherl...
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B. F. Masterman commenced this action against his wife, in the District Court of Montgomery County, to obtain a divorce. The ground alleged in the amended petition is extreme cruelty, and the specifications are that, about the first of December, 1888, and at divers times thereafter, the defendant charged the plaintiff with unchastity, and with maintaining unlawful sexual relations with various wom...
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The town site of Palmetto was entered by the probate judge, in accordance with the act of Congress, for the benefit of the occupants thereof, as a town site. He conveyed the land to twelve persons, by name, as members of the Palmetto Town Company. Some of these persons, and the heirs of others, have conveyed to the plaintiff, which now claims the lots in controversy, which are included in the town...
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M. H. Osborn brought this action against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the destruction of several stacks of wheat by a fire alleged to have been negligently started by one of the Company’s locomotives. The wheat was stacked on Osborn’s premises, which adjoined the right of way and depot grounds of the Railroad Company, at Danville ; and it appears *769tlia...
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Frank Palmeter was imprisoned under an order of the police judge of Osage City, and in this proceeding he seeks release, alleging that the order is invalid and his imprisonment illegal. There is an ordinance in Osage City, a city of the second class, prohibiting the sale of intoxicating liquors. Another ordinance, in relation to the enforcement of said ordinance, contains a provision that, if the ...
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The principal question presented for determination is, whether a receiver, who unlawfully appropriates money which comes into his hands as receiver or fails to account for and pay over the same upon demand, is subject to prosecution and punishment as for embezzlement. The defendant was prosecuted upon the theory that he was an agent, and under that portion of paragraph 2220 of the General Statutes...
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The defendant in error filed a petition in the Circuit Court of Shawnee County, which alleges that the plaintiff in error executed and delivered to him a promissory note of which the following is a copy : “ $700. Fort Scott, Kan., January 33, 1892. “ Ninety days after date, for value received, I promise to pay to the order of E. F. Ware, seven hundred dollars, at the First National Bank of Fort Sc...
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This action was brought in the court below by the defendant in error, alleging title to, and possession of, two certain tracts of land in Doniphan County, each tract containing a portion of the vacated town of Palermo and extending therefrom to the west bank of the Missouri River. The plaintiffs in error, defendants below, answered by, first, a qualified general denial; second, a disclaimer of any...
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The first thing requiring our attention, is the motion of the defendant in error to dismiss these proceedings for the reason that the plaintiff in error has voluntarily accepted the benefits of the judgment of the court-below, and is, therefore, estopped from prosecuting error, to reverse the same. It appears from the record and the evidence offered that, on June 17, 1893, judgment was rendered fo...
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This action was commenced in a justice’s court of Wyandotte County, by J. K. Cubbison, to recover the sum of $250 for services as attorney at law, performed in pursuance of a contract with Benjamin Friedberg. The defendant denied liability. On May 3, 1894, trial was had, and the justice rendered judgment in favor of the plaintiff and' against the defendant for $263.80. A motion for a new trial was...
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It is contended in this case that the effect of a judgment of default against the plaintiff, although subsequently set aside and a new trial awarded which resulted in a verdict for the plaintiff, had the effect of discharging the surety upon the appeal bond. It is argued that the condition of the appeal bond is, that the appellant, defendant in the justice’s court, shall prosecute his appeal to ef...
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This action was brought in the District Court of Leavenworth County by Lucy E. Birney against Ellen and Cornelius Cannon. The petition alleges a cause of action against the defendants for a balance due on a promissory note. At the commencement of the action, an. attachment was issued at the instance of the plaintiff, and levied upon real estate in the city of Leavenworth. A summons was issued to t...
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The plaintiff in' error sued the defendant in error, who was sheriff of Shawnee County, in replevin, to recover the possession of clothing, claiming ownership under a chattel mortgage from Jacob Levi. The defendant had possession, as sheriff, under a levy of attachment against Levi at the suit of one of Levi’s creditors. The contention of the defendant was that the mortgage was void because made t...
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Complaint is made that the court erred in excluding from the consideration of the jury-competent, material and relevant testimony. The interrogatories were competent and the court erred in sustaining the objections ; but this was not reversible error, for the reason- that questions, embracing all that was included in the excluded questions, were put in the course of the further examination of the ...
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This case was before the District Court of Jackson County upon a second amended petition, filed therein on April 6, 1891. A brief synopsis of said amended petition is as follows : 1. The partnership of plaintiffs as Henry W. King & Co., pleaded. 2. That the defendant, the First National Bank of Conneautville, Pa., is a corporation under act of Congress. That defendants W. B. and W. S. Gleason, for...
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This action was brought by the plaintiffs in error against the defendant in error to recover upon a policy of insurance issued by the defendant in error upon the life of Adam Brenner. The pleadings admit the incorporation of the defendant as a mutual life association under the laws of the State of Kansas, and that the assured, at the time of making application for the insurance, was of the age of ...
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(dissenting). It is conceded in this case by the majority df the court that the plaintiffs in error would be entitled to subrogation under the first mortgage upon the property in controversy, except that they did not bring their action in time. The majority of *151the court places the affirmance of the judgment of the court below upon the ground that the plaintiffs delayed too long in bringing the...
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This action was originally brought in the Circuit Court of Shawnee County by the defendant in error, to recover, from the City of Topeka, damages alleged to have been sustained by her on account of a loose board in a sidewalk flying up and tripping her and causing her to fall. The case was tried to the court and a jury, and a verdict given for the plaintiff in the sum of fifteen hundred dollars da...
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This action was brought in the court below by Delana Allbert, against the Board of County Commissioners of the County of Nemaha, to recover for personal injuries to herself and damages to her property on account of a defective bridge across the Nemaha River. The injuries complained of were sustained while she was driving across the bridge. Her horse.took fright and backed her buggy off the approac...
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This action was brought by way of an interplea filed by the plaintiffs in error, in the District Court of Jefferson County, in a proceeding instituted by the Attorney General of the State to wind up the affairs of the State Bank of Perry. The inter-pleaders set up title in themselves to a safe then in the hands of the receiver appointed by the court to take charge of the assets of said Bank, and p...
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In 1874, J. M. Harrington .married Nancy it. Converse, a widow, without children, but with considerable separate property, included in which was 160 acres of land in Shawnee County, Kansas, which was occupied by them as a home for several years prior to her death, which occurred in February, 1885. While they lived together as husband and wife, their business interests were kept separate and distin...
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This action was originally brought in the Court of Common Pleas of Wyandotte County by the defendant in error, against the plaintiff in error, to recover damages alleged to have been sustained by the plaintiff below by being run over by the wagon of the defendant. The case was tried to the court and a jury, and the jury returned a general verdict for the plaintiff for one thousand dollars, and als...
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(dissenting). I cannot agree with the majority of the court, either in the principles of law announced or in the conclusion in this case. The petition of the plaintiff, in my judgment, does not state a cause of action. The petition alleges in terms that the plaintiff relied upon the record, as showing that the interest of Gordon under his certificate of purchase at the tax sale had merged in his s...
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A motion has been filed in this case to strike the case-made from the files of this court. It is claimed that two pages have been abstracted from the case-made and two other pages inserted therein since the case-made was settled by the trial court. The two pages in controversy show that the motion for a new trial was overruled pro forma and recite the judgment of the court. Prom the evidence intro...
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The defendant, a banking corporation, closed its doors on June 33, 1893, being then insolvent, and on November 3, 1893, was duly declared insolvent in a proceeding taken under section 11 of the bank commissioners’ act, and since that time has been in liquidation, and has declared and paid six dividends of five per cent each on the unsecured claims of its depositors and creditors, exclusive of cred...
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The court below made an order on April 24, 1896, authorizing and directing the executrix of the last will and testament of Thomas J. Brannan, deceased, to sell at public auction a certain described lot of land in the city of San Francisco, belonging to the estate of the deceased, for *883the purpose of paying the debts and legacies of said deceased. From that order this appeal is prosecuted by the...
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Judgment was rendered for plaintiff in the sum of two hundred and ninety-two dollars and thirty-six cents, with interest compounded yearly from the eleventh day of November, 1868. Defendant appeals from the judgment and from an order denying a motion for a new trial. The appellant certainly makes a pretty strong case, showing that the judgment in this case does an injustice to appellant and to the...
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A citizen of the city of Sacramento presented in writing to the board of trustees certain charges against appellant, as superintendent of streets; whereupon the hoard fixed a time for the hearing thereof, and caused a copy of the charges and a notice of the time fixed for the hearing to be served upon appellant, who thereupon petitioned the superior court for a writ prohibiting said board from pro...
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The defendant was informed against for burglary alleged to have been committed in the county of Los Angeles December 4, 1896, by unlawfully, feloniously, and burglariously entering the house, room, and building of one Louisa Mas-sett, with intent then and there to commit the crime of larceny. Upon his plea of “not guilty” a trial was had and a verdict returned of guilty of burglary in the first de...
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Montague & Co. petitioned the superior court for a writ of mandate to compel the city treasurer of the city of Vallejo to pay a certain warrant drawn for the sum of ninety dollars and eighty-five cents by the trustees of said city. A demurrer was sustained to the petition, and the soundness of that ruling of the trial court is the matter presented here for consideration. The material facts disclos...
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The defendant was convicted of murder in the first degree, and appeals from the judgment and from an order refusing a new trial. The defense was insanity of the defendant, caused by excessive indulgence in alcoholic drinks for a number of years, inducing chronic alcoholism, through which his. brain became permanently diseased, causing delusions and rendering him incapable of knowing the wrongfulne...
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This is an action for damages; the jury returned a verdict in the sum of fifteen hundred dollars, for which amount judgment was entered in favor of plaintiff; and from the judgment and order denying a new trial the defendant appeals. Plaintiff purchased a tract of land from defendant, together with a certain water right appurtenant thereto; and it is averred in the complaint that afterward, and be...
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This action was brought to recover a broker’s commission for the sale of real estate. The complaint charges that on or about April 17, 1894, defendants employed plaintiff to sell certain lands, and agreed to pay him a reasonable compensation for his services, provided he should succeed in selling the same on terms satisfactory to defendants. It is then averred that he found a purchaser on the 18th...
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ASSUMPSIT – QUANTUM MERUIT – INSUFFICIENT DEFENSE – SPECIAL CONTRACT FOR CONSTRUCTION OF LEVEE – NONPERFORMANCE – NONPAYMENT OF INSTALLMENTS. – The failure to make agreed monthly payments, under a special contract for the construction of a levee, is a substantial breach there of by the one for whom it is constructed, and justifies the contractor in refusing to proceed further thereunder; and he ma...
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This is a motion to dismiss the appeal from the judgment, on the ground that the time for filing the transcript on appeal has expired and no transcript has been filed, and because the pretended record which was filed contains no copy of the judgment-roll. The first ground is based upon the informal certificate to the transcript. The appellant has produced a proper certificate, which we think he sh...
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Action upon an injunction bond. Defendants appeal from the judgment and from an order denying a new trial. An action was brought against plaintiff in the United States circuit court to enjoin it from using a certain trademark and label. October 23, 1890, a temporary restraining order was made, pending an order to show cause why an injunction pendente lite should not he issued. Both orders were ser...
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This action is prosecuted to recover from the defendant five thousand five hundred dollars and interest, upon a promissory note made by defendant to plaintiff on December 27, 1890, due six months after date. The answer contains several defenses, alleging separately that there was no consideration for the note, that the consideration had wholly failed, and also alleged that said note was given for ...
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Appeal from a judgment of the superior court in and for the city and county of San Francisco in favor of plaintiff for $2,628.85, upon a promissory note made by defendant for $2,500, bearing interest after maturity at eight per cent per annum, and dated August 21, 1894. Accompanying the note rvas an agreement executed by the patties of which the following is a copy: “Agreement. “This agreement, ma...
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The opinion of the court was delivered by This action was brought to recover damr ages for malicious prosecution. The appellant Christian Scheuerman made complaint before a justice of the peace charging the respondent and one Pratley with burglary in entering appellants’ dwelling house. A warrant was issued and the respondent and Pratley were arrested. Pratley was discharged upon a motion of the p...
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The opinion of the court was delivered by This was an action to foreclose a special assessment lien for the improvement of Fifth street in the *127city of Seattle. Issues were made and a trial had, which resulted in a decree against the defendants, who have appealed therefrom. The evidence is not brought here, but the contention is that no judgment could have been rendered in favor of the plaintif...
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Tlie opinion of the court was delivered by This action was brought to cancel a tax deed and was before this court upon a former occasion (16 Wash. 74, 47 Pac. 414), where the plaintiff had appealed from a decree sustaining the validity of the deed. This court held it invalid, reversed the cause, and remanded it to the lower court with directions to enter a decree in favor of the plaintiff. Upon th...
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*137The opinion of the court was delivered by This is a second appeal. The case is fully stated in 15 Wash. 280 (46 Pac. 247). The present appeal is from an order, made on motion of the defendant at the close of the trial, discharging the jury and directing judgment for the defendant. The law of the case was stated on the former appeal as follows: “ Where a creditor, without inadvertence or mistak...
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The opinion of the court was delivered by The defendant was convicted of an offense, charged in the following language: “ That on the 9th day of December, A. D.’ 1896, at the county of Spokane and state of Washington, the said William H. Barkuloo and Andrew McLeod then and there being, did then and there unlawfully and feloniously, take, steal, carry and drive away two head of neat cattle then and...
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The opinion of the court was delivered by The plaintiff brought suit against the defendants in the superior court of King county for moneys had and received, alleging a balance due him thereon. The appellant was served with process on the 18th day of December, and on the morning of the 8th day of January following a judgment was rendered against him by default. On the 12th day of January the- app...
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The opinion of the court was delivered by The respondent recovered judgment on appeal to this court on March 14, 1894, against George Donald, James L. Smith and Prank B. Howell, as principals, and A. A. He wherry and D. C. Corbin, as sureties oil the supersedeas bond. A remittitur was sent to the superior *151court of Spokane and thereafter became a judgment for enforcement in that court. On the 1...
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The opinion of the court was delivered by Appellant, a municipal corporation of the fourth class under the laws of Washington, brought this action to enforce the collection of an amount levied by reassessment, on account of street improvements, against respondent’s property. From a judgment in respondent’s favor the town has appealed. From the, record and briefs of counsel it appears that the prin...
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The opinion of the court was delivered by This action was brought to recover damages sustained by John Walter Robinson, caused by falling from a handcar under the general control of the defendant, and the plaintiff has appealed from a judgment of non-suit. *164"From the plaintiff’s showing, it appears that he, with a number of other boys, had obtained a loan of the hand-car from the section forema...
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The opinion of the court was delivered by The respondent filed a petition in the court below ashing for an order upon the appellant Ella W. Smith, his former wife, now divorced, to place the minor children of said appellant and respondent in the care of a suitable person to be selected by the court, in order that the respondent might see said children once a week, he having alleged in his petitio...
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The opinion of the court was delivered by The appellant was tried upon an information charging him with murder in the first degree, was found guilty as charged, and was sentenced to death, and an appeal is brought to this court alleging many errors. Most of the errors that are assigned by the appellant in this case have been passed upon by this court so often that we do not feel called upon to dis...
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The opinion of the court was délivered by This action was brought to foreclose a street assessment lien levied upon appellant’s property in the city of New Whatcom, pursuant to the provisions of the act of 1893 (Session Laws, p. 226, Bal. Code, §§1139-1149) providing for the re-assessment of costs of local improvements in cities and towns. At the trial below the respondent introduced a certified c...
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The opinion of the court was delivered by The complaint in this action alleges that in the month of March, 1896, and for some time preceding, an agreement existed between the plaintiffs in the action, and one George Kenney, under which agreement the said Kenney was to prospect for mineral claims and the plaintiffs were to furnish money and supplies therefor, and all locations made in pursuance of ...
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The opinion of the court was delivered by This cause was once before in this court upon an appeal by plaintiff from an order directing a non-suit, and is reported in 16 "Wash. 90 (47 Bac. 220). Hpon that appeal the order was reversed, and at the trial which followed the plaintiff recovered judgment, from which the city has appealed. There are substantially but two questions involved in the present...
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We have examined the pleadings and the testimony in this case in detail, and are satisfied that the plaintiff was a proper party to the action, and had a right to bring the sarge. If she was an abandoned wife, she had a right to bring it and have the exemption set aside for the benefit of herself and family, and if she was not, in the absence of her husband, she had a right to select the property,...
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The opinion of the court was delivered by This is an appeal taken by the plaintiffs from orders made by the court after the entry of the final decree allowing certain claims against a fund in the hands of the court for distribution, and directing the receiver to pay such claims from the funds in his hands. We will notice the second and third assignments of error, for, as we view the law governing ...
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The opinion of the court was delivered by An action at law was pending in the superior court of Snohomish county in which the J. R. Hart Lumber Company was the plaintiff, and the plaintiff here, Wyatt J. Rucker, was the defendant. The action was at issue upon the complaint, answer and reply. In December, 1896, the defendant in the action applied to have the cause assigned for trial. The plaintiff ...
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The opinion of the court was delivered by Respondent sued to recover the alleged contract price for electric current furnished in lighting a theatre building in the city of Seattle. The complaint in the action alleges that a contract was entered into, which was in form a written proposal upon the part of the respondent accepted by appellant, viz.: “Seattle, "Wash., May 11th, 1892. “ Seattle Theatr...
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The opinion of the court was delivered by At the trial of this case in the court below, on the 27th of March, 1897, the cause was submitted to the jury about six o’clock p. m., on Saturday evening. Shortly after, the court by announcement adjourned until Monday morning, and the counsel on both sides retired from the court house. Thereafter, at about eight o’clock the same evening, the jury having ...
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The opinion of the court was delivered by This is a proceeding by mandamus to compel payment of a salary to the relator as a justice of the peace of the city of Everett. It is shown by the relator that he presented his claim to the board of county commissioners of Snohomish county and that they refused to allow it; but his contention is, that it was unnecessary for him to have presented it to them...
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The opinion of the court was delivered by This is an application for a writ of mandate brought by the relator in the name of the state against the defendant as county auditor of Snohomish county, to compel the defendant as such county auditor to draw and deliver to relator a warrant upon the salary fund of said county for the sum of $1,932.95. The petition states the facts. Its material part is as...
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The opinion of the court was delivered by This was an action brought to' recover the value of certain saw logs and boom sticks, the property of *218plaintiff’s assignor, which the complaint alleges the appellant (defendant below) converted to its own use. In addition to denying the allegations of the complaint, the answer affirmatively alleged that the plaintiff’s assignor sold defendant a raft of...
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*241The opinion of the court was delivered by The questions raised by this appeal relate to the right of a second mortgagee to recover of the first mortgagee taxes paid upon the land mortgaged. The second mortgage was foreclosed first, and the mortgaged land was sold thereunder to the bank represented by the respondent as receiver. The sale was made in 1892, but a deed to the lands did not issue t...
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The opinion of the court was delivered by Appellants herein, in the month of December, 1892, commenced an action of unlawful detainer against the respondents Jones and "West and their subtenants, to recover for rent due, and also the possession of *235the premises. A provisional writ of restitution issued upon plaintiffs’ application, pursuant to section 10 of the act of March 1, 1891 (Session Law...
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The opinion of the court was delivered by The questions in controversy in this case relate to the rights of the respective parties to purchase tide lands or, as it is called by them, a sand island covered and uncovered by the flow and ebb of the tide in the Columbia River, said sands being valuable only for fishing purposes. The appellant was the owner of Brown’s Island in said river, and one grou...
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The opinion of the court was delivered by Some time in the year 1895 the respondent in this action brought an action against the Union Mutual Life Insurance Company to recover the amount stipulated in a certain insurance policy issued by that company upon the life of her husband. One of the grounds upon which the claim was resisted was that the husband of the plaintiff was not dead. The trial resu...
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The opinion of the court was delivered by This action was brought to foreclose laborers’ liens on a quantity of shingles, and, the liens being sustained, the intervenors have appealed. The sole question to be determined is whether the shingles were at the mil] where they were manufactured, or under the control of the manufacturer, within the provisions of section 2, laws 1893, p. 428 (Bal. Code, ...
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*257The opinion of the court was delivered by This action was instituted by respondent as pjaintiff seeking ;o recover the sum cf $192.86, and interest, alleging that the same had been paid involuntarily and under protest as penally and interest on the original taxes by respondent as owner of certain lands situated in King county. To the amended complaint of respondent a demurrer was interposed by...
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The opinion of the court was delivered by The plaintiff, who resided at Juneau, Alaska, intending to start an electric light plant in that city, appointed the defendant, Smith, his agent, to proceed to Seattle to purchase the necessary machinery therefor, and entrusted him with a check for $3,000, drawn by Thorp on the Merchants’ Rational Bank of Seattle to enable him to make a purchase, and such...
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The opinion of the court was delivered hy In October, 1891, the appellant commenced an action in the superior court for Whatcom county to recover of the defendant Bellingham Bay Base Ball Association, a corporation, a balance upon an open account, amounting to $525. In its complaint appellant alleged that the defendant corporation was insolvent and ashed for the appointment of a receiver, who qual...
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The opinion of the court was delivered by The appellants made and executed to the respondent bank the following note: “Auburn, Washington, Sep. 17, 1895. “ Two months after date, without grace, for value received, I promise to pay to the order of the Bank of Auburn, $1,000.00 one thousand dollars, payable at the Bank of Auburn, Washington, with interest from date at the rate of 10 per cent, per an...
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The opinion of the court was delivered by This was an action to recover upon a warrant issued upon a special fund created to pay the expense of grading a street. The complaint alleges that after the completion of the improvement the city compromised with the various owners of property abutting on said street, and accepted from them amounts less than the sums assessed against such property, in cons...
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*288The opinion of the court was delivered by This action was brought to recover damages for personal injuries sustained by plaintiff while employed as a workman in defendant’s foundry. At the time of the injury respondent was engaged in operating machinery for breaking old iron car wheels. A portion of the machinery, consisting of a shaft, was run by a belt about thirty feet in length passing ov...
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The opinion of the court was delivered by The plaintiffs contracted with appellant Lewis to erect a three-story stone and brick building for her. The building was completed and a disagreement arose between the parties with reference to the amounts due for materials and extra work relating to certain changes in the plans and specifications, for delay in completing the building, and in relation to t...
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The opinion of the court was delivered by The appellant executed to the Seattle Savings Bank the following note: “$2000.00. Seattle, "Wash., May 6th, 1892. “ One year after date, without grace, for value received, I promise to pay to the order of the Seattle Savings Bank, at the banking-house of said bank, in the city of Seattle, the sum of two thousand dollars, with interest at the rate of ten p...
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The opinion of the court was delivered by This is an appeal from the judgment of the superior court of King county allowing damages to respondent for an injury sustained by falling on a sidewalk in the city of Seattle and breaking his leg by said fall. It appears from the testimony in this case that at the place where the respondent fell one plank was slightly raised above the other, and when the ...
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The opinion of the court was delivered by The appellants, who were the owners of a certain farm, leased the same in January, 1894, to one C. T. B. Hall, a married woman, for the term of one year. It is alleged by the appellants that it was understood that the hay crop then growing on the premises should remain and bo subject to the control of the lessors, that the hay should be cared for and harve...
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The opinion of the court was delivered by Plaintiff commenced an action' against the defendants Catlin and caused a writ of garnishment to be issued and served on the appellant on October, 1895. He answered disclosing that he had certain articles of household furniture belonging to the defendant, Eva J. Catlin, which he held under a lease from her, which lease would not expire until seven months ...
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The opinion of the court was delivered by In March, 1889, L. M. Robbins and Eliza J. Robbins, husband and wife, executed a mortgage on lot 4 in block 47 of A. A. Denny’s addition to the city of Seat-*333tie to the plaintiff in this action. Thereafter, in the month of April in said year, the city enacted an ordinance for the grading of Lenora street, upon which said lot abutted, and to make the exp...
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The opinion of the court was delivered by This is an action against the appellant, a street railway company, for personal injuries inflicted upon the, respondent. The complaint alleges that the appellant negligently and carelessly, struck, knocked down and dragged respondent a distance of twenty-five feet, negligently caused the car in *352which the respondent was riding to he overcrowded, thereby...
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The opinion of the court was delivered by This case was originally brought by the appellant against the respondent for damages for breaking appellant’s leg’ during his employment by the respondent, and alleging that the injury was caused by the negligence of the respondent, and upon the further ground of the unskillful treatment of his injuries by the company’s physician. In the trial upon the is...
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The opinion of the court was delivered by In May, 1894, the city of Seattle passed an ordinance providing for the improvement of streets and the construction of sewers at the expense of the property benefited, and for the issuance of bonds therefor, payable in installments, pursuant to an act of the legislature (Laws *3201893, p. 231, Bal. Code, §§ 1185-1189), and also providing for the levying an...
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The plaintiff brought this suit to obtain a perpetual injunction to restrain the defendant from interfering with the use and enjoyment of a certain ditch, known as the “Miners’ Ditch,” by the plaintiff, and for damages, and a judgment decreeing the plaintiff to be the sole and absolute owner of said ditch. The case was tried by the court without the intervention of a jury, the facts found in favor...
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ON REHEARING. This is a petition for rehearing. It appears that a motion was made in the lower court to set aside and annul certain orders made allowing compensation for legal services to the attorneys for the assignee, and to readjust and fix such compensation, and to allow a certain offset. It is contended that the opinion heretofore rendered in this case proceeds upon the theory that said motio...
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This is an appeal from the judgment and order overruling motion for a new trial. A motion was made to dismiss the appeal, on the ground that the undertaking was void 'for uncertainty. In the ^preamble of the undertaking it is recited that the appeal is from the judgment, and from the order denying a motion for a new trial. And in the obligation the obligors agreed that said appellants will pay all...
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The appellant, the Coeur D'Alene Eailway and Navigation Company (a corporation), entered in*531to a contract with William L. Spaulding, the respondent, on the ninth day of August, 1886, by the terms of which respondent agreed to construct a line of railway from Old Mission, in Kootenai county, to Wardner Junction, in Shoshone county — a distance of about fourteen miles. The work of grading was to ...
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This is an original proceeding in this court by way of application for a writ of mandamus to compel the respondent, as district' judge of the first judicial district, to hear at chambers an appeal from an order of the board of county commissioners of Shoshone county to the district court of said district in and for said county. It appears from the petition that said county commissioners made, on t...
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The defendants compose the state board of medical examiners, appointed under the act of March 12, 1897, The plaintiff commenced this action to compel the said defendants, by mandamus, to show cause why plaintiff should not be permitted and licensed to practice medicine. It appears from the petition and supplemental petition that the plaintiff became a citizen of Nez Perces county, Idaho, on the se...
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On the twenty-second day of June, 1893, one J. A. Hays, representing the defendant company, received from the plaintiff an application for insurance on certain property situate in the town of Glenn’s Ferry, Elmore county, Idaho. No policy of insurance was at the time issued, but the agent gave to the plaintiff a receipt in the following words: “Received of R. A. Easley an application for insurance...
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Upon the former hearing the decree of the court below was affirmed on the ground that Beach’s answer was insufficient (48 Pac. 708), but it now appears that all the record was not before the court at the time. A portion of it had been misplaced, and did not get into the judgment roll, and, as the attorney who took and prosecuted this appeal *422did not try the case in the court below, he was not a...
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after stating the facts, delivered the opinion of !;he court. It is contended by the defendant that, the action having been brought against two parties upon an alleged joint contract, the complaint could not be amended so as to state a cause of action against one *310of them only; that such an amendment is, in effect, the statement of a new and different cause of action, which it is thought is not...
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having stated the facts, delivered the opinion of the court. Upon the facts disclosed by the record, we are ■of the opinion that the defendant was entitled to have the judgment opened up, and to make his defense, and that the denial by the trial court of his motion for that purpose is reversible error. The case presented is not one of negligence or omission on the part of either defendant or his c...
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after stating the facts in the foregoing language, delivered the opinion of the court. The rulings of the trial court were evidently based upon the theory that Henderson’s authority to make *319the contract upon which this action is based could be proven only by the records of the county court, and that parol evidence was not admissible to supplement such record as to facts which actually occurred...
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Decided 26 December, 1899. On the Merits. [59 Pac. 454.] delivered the opinion. Counsel for appellant has endeavored to present the question whether it was error in the trial court to direct the jury to return a sealed verdict, and to permit them to separate before returning the same, without the consent or agreement of counsel. As it respects the issue thus stated, the bill of exceptions shows th...
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after making a statement of the facts, delivered the opinion of the court. The only question argued or to be determined on this appeal is whether the assignment from Thompson to Coshow is void as to the plaintiffs in this suit. They admit that the mortgage to the Bank of Brownsville, the conveyances to Mrs. Thompson and Mrs. Hida, the transfer of the promissory notes to Hausman, Powell, and Grover...
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after stating the facts, delivered the opinion of the court. The issues presented by the record involve a question as to the effect to be given the execution sale and redemption therefrom by the successor in interest of the judgment debtors. Plaintiff contends that it extinguished absolutely and effectually the lien of the judgment upon the premises in question, while the defendants insist that th...
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delivered the opinion. This is an appeal by the defendant from a judgment rendered against him for the sum of $533.15, the amount due on a promissory note, including attorney’s fees. The notice of appeal assigns as error the action of the court (1) in directing a reference ; (2 ) in rendering judgment for the amount demanded in the complaint, notwithstanding the finding by the court that defendant...
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This is a motion for leave to take out a mandate, without the payment of costs, in an action brought by the plaintiff against the defendant in 1888 to recover damages for an injury caused by the alleged negligence of the defendant, and reversed by this court on January 6, 1890 (18 Or. 289, 22 Pac. 1076), but in which the mandate was withheld until the further order for the court. The facts upon wh...
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The defendant, Daniel Magone, was jointly indicted with Charles Montgomery, William Rector and Edward Long for the crime of disinterring a human body, and, being separately tried, was convicted thereof, and sentenced to imprisonment in the penitentiary for a term of two years, from which judgment he appeals. It is contended by counsel for defendant that the' court erred in the admission of the tes...
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The complaint in this case contains two counts. In the first count, the plaintiff, after making the necessary preliminary allegations, alleges the following facts: That the board of county commissioners of Bannock county did, July 14, 1893, by order then entered upon the records of said board, determine that it was essential to purchase real estate upon which to erect a courthouse and jail, and ap...
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The appellant, who was the defendant in the court below, was convicted of the crime of bringing sheep into the state without having first obtained the certificate or permit of the deputy sheep inspector. He waived a jury trial, and the case was submitted to the court on a written stipula*645tion of facts. The defendant was found guilty, and sentenced to pay a fine of $100, and five cents per head ...
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The respondent moved to dismiss this appeal, which is brought here from a judgment in favor of the respondent (plaintiff below), and against the appellant, Edna G. Ward, and Mary E. Godard, jointly, on the ground that said Godard did not join in the appeal, and was not served with notice of appeal. The judgment being joint, said Godard was a necessary party to the appeal; and, not joining in the a...
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The opinion of the court was delivered by Plaintiffs were the owners of 3,122 sacks of wheat and stored the same in the warehouse of C. D. Prancis & Co., receiving .a warehouse receipt therefor, and thereafter assigned the same to the Northwestern Milling & Power Co. as collateral security for the payment of a note executed by them to said company. Afterwards said Mining & Power Co., without the ...
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The opinion of the court was delivered by The complaint in this case alleges substantially that the defendant under employment as attorney at law by the plaintiff had prosecuted an action in favor of plaintiff and against one John ~W. Megrath et al. for a large sum of money, that in said action judgment was obtained against said Megrath et al. for the sum of $1,161.29, and that upon appeal to the ...
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The opinion of the court was delivered by Plaintiff brought this action to recover upon a promissory note executed on September 3, 1894, for the sum of $600 with interest at the rate of ten per cent, per annum, by J. M. Dougan, Edw. S. Barlow and T. A. Bringham to the order of O. H. Anderson, and thereafter indorsed by the appellants. The makers of the note made default, but the appellants contes...
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The opinion of the court was delivered by Appellant commenced an action in the superior court of Whitman county against respondent in his official capacity to restrain him from levying upon its property for the collection of taxes assessed by the county against the shares of stock of the appellant bank owned by certain of its stockholders. The complaint states that appellant is a state bank; that,...
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The opinion of the court was delivered by Appellant was the owner of twenty-eight shares of capital stock of the Traders’ National Bank of Spokane of the value of $2,300. The county assessor called on appellant for a detailed list of his property for the purpose of assessment for the year 1895, which list of all his personal property and credits was duly verified by appellant and furnished. On the...
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*327The opinion of the court was delivered by The county treasurer of Pierce county filed his petition, on behalf of the county in the above entitled cause, claiming certain taxes alleged to be due from the insolvent bank for the year 1894, and from the receiver of the bank for the years 1895-6. The shares of capital stock of the bank were duly assessed on the first day of April, 1894, by the coun...
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The opinion of the court was delivered by This is an action to foreclose a mortgage on real estate, brought by Kebekah T. and Laura Purness against the respondents and appellants as defendants. The appellants filed a cross-complaint containing two causes of action, the second of which set up a second mortgage upon the premises for the principal sum of $317.20. To this answer and cross-complaint th...
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The opinion of the oourt was delivered by This cause involves a controversy between respondent Rudkin and appellants Yakima Rational Bank and Hoffman over the distribution of a fund in the custody of the superior court of Yakima county. The fund was paid into court by appellant Yakima Water, Light and Power Company pursuant to a decree of appropriation of right-of-way for a canal conveying water ...
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The opinion of the court was delivered, by On the 7th of November, 1895, plaintiff (here respondent) commenced an action against the defendant, the Merchants’ National Bank of Seattle, and regularly served the defendant with summons. Summons and complaint were not filed until the 30th of November following, and judgment by default was taken against the bank. Defendant bank on the 20th of May prece...
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The opinion of the court was delivered by Tbe appeal in this case is from a judgment and order of distribution, and.appellant seeks the review of various intermediate orders made in tbe course of tbe assignment proceedings. A motion to dismiss has been made upon various grounds. Tbe first is that it does not appear from tbe record that the notice of appeal, which was oral, was given at tbe time tb...
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The opinion of the court was delivered by Plaintiff brought this action to recover the value of services performed by himself, and by A. F. *340Bunker, E. W. Bunker, A. E. Livingston, and Alfred Bogue, upon a coal mine, in King county. The right to recover is based upon certain correspondence between A. E. Bunker, one of the plaintiff’s assignors, who was superintendent of the mine, and the defend...
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The opinion of the court was delivered by Respondent herein instituted an action in the superior court of Thurston county against appellants A. H. Chambers and Robert Trost, and other parties, to recover the amount due on a promissory note for $8,000 executed by the Olympia Light and Power Company to the said defendants, and by them indorsed to the plaintiff. The defendants set up in their answer ...
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Action to quiet title. The plaintiff had judgment, and the defendant, Horace A. Mayhew and Mary J. Mayhew, appeal from the judgment, and also from an order denying their motion for a new trial. No point is made upon the appeal from the judgment. The complaint is sufficient, and the facts found support the judgment. The motion for a new trial was heard, as the order denying the motion recites, upon...
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Action to quiet title to a portion of a certain lot Ho. 97, outside lands of the town of Santa Barbara. On January 29, 1875, James L. Ord, then the owner of said lot 97, executed a deed purporting to convey the whole thereof to one Robert B. Ord, his brother, for the expressed consideration of fifteen hundred dollars. On August 20, 1875, in an action of divorce between said James and his wife, Aug...
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The defendants, Van Horn and Crow, ; were charged by information with the murder of one A. D. Littlefield. They were convicted of murder in the second degree 'and sentenced to imprisonment in the state’s prison, and they appeal from the judgment and from an order denying a new trial. • The transcript is quite voluminous, and appellants make a great many points upon exceptions taken by them to ruli...
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A petition for hearing in Bank having been granted, upon further consideration it appears that on January .20, 1892, McDonald conveyed to John Brown Colony, a corporation, and to D. S. Dorn blocks 51 and 60. On that day the title still remained in Brown. The Dorn deed was recorded January 23d, while'the John Brown Colony deed was recorded January 26th. On January 25, 1892, Brown conveyed these sam...
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I dissent. In my opinion but one of the orders was appealable, and there was but one appeal. Besides, I am unable to distinguish this case from SprecJcels v. SprecJcels, supra, in which a bond similarly defective was held to be amendable, and this bond has been amended. Behearing denied....
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This appeal is taken by F. C. Martin, one of the defendants in the above-entitled cause, from a decree of foreclosure of four mortgages. The cause comes up on the judgment-roll, without any statement or bill of exceptions. On the second day of June, 1890, the defendant, John A. Perry, being the owner of five lots or parcels of land situate in Monterey county, designated as lots Nos. 10, 11, 55, 56...
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This action is brought under the act approved April 23,1880, entitled “An act amendatory of an act for the better protection of the stockholders in corporations formed under the laws of the state of California for the purpose of carrying on and conducting the business of mining, approved March 30, 1874.” Trial by the court, and plaintiff had judgment for $1,000 liquidated damages and as penalty fo...
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On March 11, 1892, the defendant, M. E. Murphy, executed a promissory note for fourteen hundred dollars to W. H. Lee, plaintiff’s testator (and husband), and on the-same day he executed a mortgage on the premises described in the complaint to said Lee, to secure the payment of said note. The mortgage was acknowledged by Murphy before Lee, the mortgagee, and the name of the mortgagee given in the m...
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Defendant Ellenwood was tried upon an information charging him with making and passing a fictitious check with intent to defraud one James H. Doolittle, was found guilty as charged, and sentenced to imprisonment at San Quentin for fourteen years, and he appeals from said judgment and an order denying his motion for a new trial. Appellant contends that the information upon which he was tried is ins...
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Action for the foreclosure of a mechanic’s lien. In May, 1894, the defendant Hege being the owner of a' lot of land in the town of Santa Monica, on which there was a dwelling-house, verbally leased the same to his codefendant, Naumann. Shortly after Naumann had entered into possession he obtained permission from Hege to construct certain additions to the building, and for that purpose purchased ce...
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This is an action to restrain the defendant, a municipal corporation, from polluting the waters of Santa Rosa creek by discharging or permitting to run into said stream, above the lands of the plaintiff, any of the sewage from the city of Santa Rosa, the defendant herein, and to recover damages for past injury. Plaintiff had judgment for one dollar damages and a perpetual injunction restraining de...
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Proceedings in aid of execution. Appellants obtained judgment against Mrs. C. A. Marcher for nine hundred and twenty-seven dollars and forty-nine cents in January, 1895, and an execution was duly issued thereon, and in January, 18.96, while the execution was in the hands of the sheriff, and before its return, S. Lyons made an affidavit pursuant to sections 715 and 717 of the Code of Civil Procedur...
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This is a creditor’s hill, in which it is sought to subject certain property to the satisfaction of plaintiff’s execution against John Thompson. A general demurrer to the complaint was sustained, and the plaintiff, having declined to amend, appeals from the' judgment entered. Besides showing plaintiff’s judgment and execution, the complaint contains allegations showing that Jonathan Thompson died ...
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The opinion of the court was delivered by In this action the plaintiff below, defendant in error here, recovered a judgment against the city of Guthrie for damages alleged to have been sustained by her on account of the negligence of the city in that it failed to keep its streets in a reasonably safe condition for the public to travel upon. The case was before this court at the June, 1895, term, w...
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The opinion of the court was delivered by One of the plaintiff's assignments of error is "that the court below erred in overruling plaintiff in error's motion for new trial." This, we have already held in the case ofRichardson, Adm. v. Mackay, decided at the present term of the court, (p. 328 this volume,) was sufficient to bring up for review the action of the court in overruling a motion for new...
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This action was commenced in the District Court of Neosho County, Kansas, to recover upon a policy of insurance written by the Milwaukee Mechanics’ Insurance Company, in favor of Mrs. Winfield, upon “her stock of implements, buggies, spring wagons, sewing-machines, separators, steam-engines, horse-power and machine fixtures, baled broom-corn, baled hay, grain, seeds of all kinds, and such other me...
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A judgment was rendered by a justice of the peace of Topeka, in favor of the plaintiffs in error herein, and against the Garnett Land & Improvement Company, J. H. Dennis, G. F. Parmalee, and M. Updike, and within ten days thereafter an appeal bond was filed, of which the following is a copy: "Whereas, the defendants, the Garnett Land & Improvement Company, J. H. Dennis, G. F. Par*192malee, and M. ...
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The opinion of the court was delivered by This action was begun by the plaintiff in error, as plaintiff below, to recover the possession of certain horses which plaintiff claimed were wrongfully detained from it by the defendant, P. J. *681Massey-. Plaintiff claimed the property by virtue of two chattel mortgages. Its petition alleged that it is a Nebraska corporation ; that on April 16, 1888, one...
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This action was commenced in the District Court of Barton County, Kansas, by the State of Kansas, to recover from the plaintiffs in error and one D. B. Jones the amount due by reason of the wrongful conduct of said D. B. Jones while county clerk of said Barton County. The plaintiffs in error were sureties upon the official bond of said Jones. The petition alleges that the county commissioners of B...
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This case was decided by this court at the December, 1896, term. Neuforth v. Hall, 5 Kan. App. 726. A petition for a rehearing was filed and allowed. A careful review of the points raised in the petition for a rehearing and of the record in this case, satisfies us that the judgment of the district court should be affirmed. * On October 2, 1879, Martin Gutzweiler and Lizzie, his wife, entered into ...
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The plaintiff in error questions the right of the check holders to maintain the action against the drawee of the checks, and cites paragraphs 484, 485, 486, 487 and 488 of the General Statutes of 1889, which provide that no person shall be charged as an acceptor of a bill of exchange unless his acceptance be in writing, etc. It seems to us clear that the Bank cannot be charged as an acceptor. On t...
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This action was commenced in the .District Court of Franklin County, Kansas, by *562Benjamin Curry, as plaintiff, against the Kansas & Colorado Pacific Railway Company, as defendant, to recover the damages alleged to have been sustained by Curry on account of the breach of a contract made by the Railway Company to furnish him with an annual pass over the Missouri Pacific Railway system to be renew...
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L Xnfdeis“oant This action was commenced by B. F. Reynolds in the District Court of Franklin County, Kansas, to recover damages against J. A. Elwell and J. R. South, for false imprisonment. The defendant South, in his answer, alleges that he made the arrest-*546of Reynolds under a warrant of which, the following is a copy : “State of Kansas, Coffey County, ss. “The State of Kansas to the Sheriff...
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This action was commenced in the District Court of Bourbon County, Kansas, by Eldon Lowe, as plaintiff, against the Board of County Commissioners of Bourbon County, Kansas, as defendants, to recover a balance of salary alleged to be due him as county treasurer. A demurrer was sustained to the petition of the plaintiff and he brings the case to this court for review. The only question in this case ...
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Long Brothers obtained a judgment in the District Court of Crawford County against A. Coles and Lucy L. Coles, husband and wife. Execution was issued, and the stock of goods in controversy-levied upon as the property of L. L. Coles, by the plaintiff in error who was at the time Sheriff of Crawford County. On the twenty-seventh day of June, 1892, this action in replevin was brought in the District ...
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Mary Herbert, plaintiff below* commenced an action in' the District Court of Chero-v kee County against the City of Weir, to recover damages for injuries alleged to have been sustained by reason of a defective sidewalk. The case was tried to a jury, verdict returned, and judgment rendered in favor of plaintiff below for five hundred dollars. The defendant below brings the case here for review. The...
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This was an action by defendant ,in error, a corporation, upon a subscription for shares of stock by plaintiff in error. Judgment was rendered in the court below in favor of the defendant in error for $125 and costs. Proceedings in error were brought by defendant below.' The case originated in justice’s court and was appealed to the District Court of Craw*573ford County, where an amended bill of p...
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i. statement part, At the outset, the motion filed by defendant in error Reese to dismiss the petition in error requires consideration. The contention is that the case-made contains no proper certificate or statement showing that all of the .evidence introduced on the trial is preserved. The only statement on this point is the following, which appears immediately after the journal entry of judgmen...
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This is a controversy about the machinery part of certain flouring mills situate in the city of Oswego, Labette County. Tbe cause was submitted to the trial court upon an agreed statement of facts, upon which the court found conclusions of law and entered a decree perpetually enjoining plaintiff in error from selling or interfering with the property. Plaintiff in error filed a motion for a new tri...
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This is an action in replevin brought in the District Court of Bourbon County, Kansas, by the plaintiffs in error, as plaintiffs, against the defendant in error, as defendant, to recover from him the possession of certain goods and merchandise. The petition of the plaintiffs alleges that they have a special ownership in, and are entitled to the immediate possession of, said goods and merchandise, ...
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(After stating the facts as above.) Section 3776 of the Revised Statutes as amended January 8, 1891 (Chap. 36, L. 1891), prescribes what property shall be taxable, and sheep are designated therein. The county assessors commence the annual assessment as soon as they are furnished with the assessment roll with which - they are required to be provided by the county commissioners on the first Monday i...
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The evidence in this case shows that the defendant in error as county treasurer of Laramie County executed a written appointment of L. E. Stone as deputy county treasurer, on January 15, 1891. That L. E. Stone took the oath of office and that the paper containing such appointment and oath were filed with the county clerk on January 22, 1891. That said L. E. Stone entered upon the duties of the off...
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The plaintiff brought his action against the three defendants npon an alleged joint contract for the performance of certain labor, in the construction of three water wheels and certain other work. The first paragraph of plaintiff’s complaint is as follows: “The plaintiff complains, and alleges that about the first day of May, 1895, plaintiff and defendants entered into an agreement whereby plainti...
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rlhe appellant, as plaintiff, sued the defendant on two separate notes, and filed an affidavit and undertaking for attachment to secure both debts, which attachment issued. Thereafter the respondent served notice of motion, based upon affidavit, to dissolve the attachment, upon the ground that the affidavit for attachment was false, in this: That it stated that the note for $200 (sued on in the se...
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Respondent filed in the district conrt for Bingham county a petition for a writ of mandate against the state board of examiners and the state auditor, commanding said board to audit and allow certain claims presented to said board of examiners, and upon which the board has neglected to act. The claims, as appears from the petition, were for supplies furnished to the state asylum for insane at Blae...
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This is an appeal from the action of the district court of Blaine county in affirming the action of the board of commissioners of said county in allowing a claim of I. T. Osborn, chairman of said board, for moneys laid out and ex*613pended by said Osborn as a member of said board in behalf of said county. It is not claimed nor pretended that the full amount set forth in the bill of the claimant wa...
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F. G. Hills, the defendant in error, brought this action against the plaintiffs in error, in the District Court of Franklin County, to recover various sums -which he alleged said parties had illegally drawn from the capital stock of the Wellsville Farmers’ and Laborers’ Exchange, an insolvent corporation, for which said Hills had been appointed receiver by said court. The answer of defendants set ...
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This is an action for an injunction, commenced in the District Court of Montgomery County, Kansas, by Benjamin F. White, as plaintiff, against F. C. Moses, Sheriff, and C. J. Corbin, as defendants. The petition alleges that the defendants are about to sell under execution a certain eighty acres of land which is the homestead of said White and his family. The defendant filed a motion to dissolve th...
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This action was brought by the defendant in error, as plaintiff, against the plaintiff in error, to recover the sum of $3082 as damages, and $300 additional as attorney’s fees, on account of the destruction of 706 apple trees in plaintiff’s orchard, by a fire alleged to have been negligently set out by the servants and employees of the Railroad Company. The principal allegations of the petition ar...
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Petition for a writ of prohibition to restrain the respondent, as judge of the superior court, from proceeding to entertain an appeal from an order made in the justice’s court under proceedings supplementary to execution. Wells, the petitioner, obtained a judgment against one Sidney Selover before a justice of the peace, execution was issued upon the judgment, and thereafter proceedings were duly ...
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This action was brought to enforce an alleged lien for twenty-four dollars and seventy-five cents upon certain land of the defendant for work done upon a street in front of said land in grading said street, curbing etc., under section 1191 of the Code of Civil Procedure. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action,...
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John M. Cavarly died in 1895 testate. The will was admitted to probate and letters testamentary were issued to the Union Trust Company of San Francisco in accordance with the terms of the will. The estate as appraised consisted of personal property of the value of fifty thousand three hundred and sixty-three dollars and forty-one cents, and real property valued at thirty-seven thousand two hundred...
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Action to quiet title to certain land on which was a granite quarry. Defendant answered the complaint and set up an instrument executed by plaintiff to him September 25, 1889, by which plaintiff agreed to sell and convey to defendant-*431the portion of the land containing said quarry, at the expiration of a certain lease, under which the quarry was being worked, which did not expire until 1901. Th...
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This is an appeal from an order of partial distribution of the estate of Joseph B. Boody, and from an order .refusing a new trial therein. The order distributes certain par*403cels of real estate "belonging to said estate. The sole question ire issue is whether the lands so distributed were community, property or the separate property of Joseph B. Boody, deceased. Joseph B. Boody died intestate, i...
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This is an appeal by the defendant Ash-worth and the intervenor Tilton, from a judgment of the superior court in mandamus, whereby it was decreed that the defendant Ashworth, as superintendent of streets, etc., of the city, and county of San Francisco, do pay to the plaintiff the sum of $5,713, with interest. Appellants also appeal from an order denying a new trial. The real contest is between the...
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Application for the writ of habeas corpus upon the ground that the justice of the peace, in whose court the *402prisoner was convicted (by a jury) of a misdemeanor, was ousted of jurisdiction by the filing of an affidavit by defendant that he had reason to believe, and did believe, that he could not have a fair and impartial trial before said justice by reason of his prejudice and bias. (Pen. Code...
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Appellant was convicted of an assault upon one George Ryan with intent to commit the infamous crime against nature, and was sentenced to imprisonment in the state prison at Folsom for the term of live years. Defendant in due time moved for a new trial, his motion was denied, and hence this appeal. The only point made for reversal is that the evidence is insufficient to justify the verdict. Only tw...
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after making the foregoing statement, delivered the opinion. The pivotal question is, in whom did the title to the carload of wheat rest at the time it was consumed? The action is for the purchase price of wheat sold and delivered, and if there was no delivery, so as to pass title, there can be no recovery; and of this we must inquire. The court below found that the title passed by the indorsement...
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delivered the opinion. This is a motion to dismiss tbe appeal, and for an order directing plaintiff to pay defendant tbe sum of $250, to enable her to make a defense. The facts are : On July 5,1892, the Circuit Court of Multnomah County i’endered a decree dissolving the marriage contract theretofore existing between the parties, restoring to defendant her maiden name, and awarding her the sum of $...
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after setting forth the facts, delivered the opinion of the court. It is urged that the assignments by J. M. Arthur & Company to the plaintiff transferred their claims or demands only, and that the title to the property, notwithstanding, remained in J. M. Arthur & Company. In'this we cannot concur. The contracts are not only evidences of J. M. Arthur & Company’s demands against Tice, but they cont...
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Decided 10 January, 1898. On Motion to Dismiss Appeal. [51 Pac. 619.] 1. This is a motion to dismiss an appeal. The transcript shows that plaintiff commenced this suit to foreclose a lien upon certain real property of the defendant M. J. Delahunt, for material furnished to the defendant John Chandler, who, by virtue of a contract with Delahunt, had charge of the construction of a house *404for the...
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delivered the opinion. This is an action by M. M. Davis, as assignee of the Coast Carriage & Wagon Company, an insolvent corporation, to recover from H. H. Emmons the sum of $335.75, alleged to be the agreed price of certain merchandise sold and delivered to defendant, and repairs made to his buggy. The answer admits that the goods were so sold and delivered, and the repairs so made, but denies th...
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delivered the opinion. This is a suit to restrain the collection of an assessment for street improvements. The facts, in brief, are that by article VI of.the charter of East *272Portland, adopted in 1870, the board of trustees was authorized and empowered to improve the streets and parts of streets within the limits of the city at the expense of the abutting property; but it was provided (section ...
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The opinion of the court was delivered by On May 17, 1894, plaintiff below filed his petition in the probate court of i! O ” county, against defendant for $800 money had and received, which defendant agreed to return on demand, and sued out his writ of attachment against the property of defendant. Afterwards on May 19, 1894, plaintiff by leave filed his amended petition setting up specificall...
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The opinion of the court was delivered by The only question presented by plaintiff in error in this case is as to the jurisdiction of the probate court to award an injunction in this character of a case. He contends that the temporary order was dissolved by the probate court because the probate court had no jurisdiction of the cause, and that was the only question presented. The motion upon which ...
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STATEMENT OF FACTS. This action was commenced in the probate court of Kingfisher county by defendant in error, S. P. Richardson, against defendant in error, D. B. Eicholz, on July *Page 376 9, 1896, for the sum of $390.10, balance due on a promissory note given by said Eicholz to said Richardson for the sum of $1,565.10, dated June 20, 1896; the entire consideration of said...
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STATEMENT OF THE CASE. This action was brought by the plaintiff in error, who was also plaintiff below, to recover damages against the defendant railway company, alleged by him to have been sustained while driving across the track of the company in Noble county. The plaintiff alleged that he *Page 244 was violently struck by the locomotive of the railway company on November 2...
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The facts are stated in the opinion. Opinion of the court by This case was commenced in the probate court of Noble county to recover a judgment for $150, alleged to be due as rent upon a contract evidenced by a written lease. The lease was by the plaintiffs below to the defendants below of the first story or store-room, and also a room 24x40 feet, upstairs, of a building in the city of Perry, to b...
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Opinion of the court by On October 30, 1894, an information was filed in the district court of Pawnee county, Oklahoma Territory, sitting with powers of a district court of the United States, charging the appellant, Frank Labadie, with cutting timber in that part of the Osage nation attached to Pawnee county for judicial purposes. The case was tried upon an agreed statement of facts "waiving all i...
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Alexander Montgomery died November 4, 1893, leaving a last will and testament containing the following provisions: “Fifth. I give and bequeath to W. F. Goad and A. W. Foster one million ($1,000,000) dollars, in trust for my two minor children, Annie A. Montgomery and Hazel G. Montgomery, to be managed by said trustees. “Said trustees shall pay over one-half thereof to my daughter, Annie A. Montgom...
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Claim and delivery for certain four thousand and fifty-six goatskins of the value of twelve hundred and sixteen dollars and eighty cents. The court found against the plaintiff and in favor of defendant Porter, upon the issue of ownership and right of possession; *317it also found that the sheriff of San Diego county took the property from the possession of said Porter, and has since delivered it t...
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The complaint herein is upon a promissory note purporting to have been made by four persons who are named as defendants in the action. Judgment by default was rendered against three of the defendants, from which one of them—Thomas Rowland—has appealed. The affidavit of service of the summons and complaint upon the appellant is as follows: “[Title of Court and Cause.] “G. L. Wilson, being duly swor...
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The plaintiff recovered a verdict against the defendant for personal injuries sustained by the fall of an elevator in which he was at the time a passenger. From the judgment thereon and an order denying a new trial the defendant has appealed. It is alleged in the complaint that the defendant operated and controlled the elevator, and that the same was wholly under its management and control, and wa...
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This action was brought to recover from defendants an alleged indebtedness of $2,093.75 for a carload of twenty-five thousand pounds of sweet pickle hams, sold by plaintiff to defendant on March 5,1890, and delivered to them at Sioux City, Iowa, on April 26, 1890. The defendants, by their answer, denied that the hams were delivered to them in *887accordance with the contract of sale, and denied th...
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This is an action to recover damages for a malicious prosecution. Defendant McAdam was the owner of a certain tract of inclosed land. Plaintiff Seabridge was a subtenant of defendant’s vendor, and was cultivating a portion of this land to grain. Defendant, claiming the exclusive possession of the land, fastened the entrances thereto. Plaintiff, claiming the right to enter, broke the gates and ente...
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This appeal is prosecuted from a judgment directing that a peremptory writ of mandate issue to the auditor of Merced county, requiring him to draw a warrant for the sum of ninety-one dollars and fifty cents. At the request of the tax collector of the county of Merced, plaintiffs printed the delinquent tax list for the fiscal year 1894-95. They presented a claim for the work done to the board of su...
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By section 13 of the act of March 23, 1893, relating to the Whittier State School (Stats. 1893, p. 332), section 17 of the original act was amended so as to read as follows: “If any accusation of the commission of any crime shall be made against any minor, under the age of eighteen years, before any grand jury, and the charge appears to be supported by evidence sufficient to put the accused upon t...
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A demurrer to the complaint was sustained on the ground that it did not state facts sufficient to constitute a cause of action, and, plaintiff declining to amend, judgment passed for defendants, from which plaintiff appeals. It appears from the complaint that the defendants’ intestate died in October, 1892, and on November 28th his surviving widow, one of defendants, was appointed administratrix o...
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The questions involved in this appeal arise upon demurrer to the complaint and upon the contention that the judgment is not warranted by the findings. I think all these points are well taken. The complaint contains two counts. In the first, after stating the death of the testator, the probate of the will, and appointment and qualification of the executrix, and that all the property of the estate w...
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I concur in the judgment annulling the order under review. The case is a very close one; but I think that the alleged contempt rested ultimately upon the asserted fabrication and publication by petitioner of false testimony and his persistency in restating this version of the same as true. This being so, he should have been allowed to introduce such evidence as he had to the point that his publica...
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The defendant was indicted for the crime of incest, alleged to have been committed upon his daughter, a girl under thirteen years of age. He was tried and found guilty of the offense charged, and the judgment was that he be punished by imprisonment in the state prison for the term of ten years. From that judgment and an order denying his motion for a new trial he has appealed. The indictment was r...
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The plaintiff is the assignee in insolvency of C. A. Macomber. The defendants were formerly copartners as Stauf & Cooper, stockbrokers engaged in buying and selling shares of stock in mining and other corporations. This action was brought to recover from the defendants a large amount of money advanced by Macomber to the defendants for the purpose of buying, carrying, and selling shares of stock in...
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The executor has appealed from an order (of the probate court allowing him for the use of the attorney who had previously represented him in the management of the estate a fee of three thousand dollars. During the progress of the administration the executor asked for a substitution of attorneys. At the hearing of this application, Knox, the previously acting attorney for the executor, appeared and...
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Appellant was convicted of grand larceny, and, his motion for a new trial having been denied, he was sentenced to imprisonment for the term of five years. This appeal is from the judgment and the order denying a new trial. All the questions in the case are presented by the motion for a new trial. The evidence tended to show that the cow (the property alleged to have been stolen) was, by the owner,...
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In this cause Justice Harrison is disqualified ; and of the other members of the court Justices Garoutte, Van Fleet and McFarland are of the opinion that the judgment should be affirmed, and the Chief Justice and Justices Temple and Henshaw are of the opinion that the judgment should be reversed. The cause has been pending a long time, and repeated consultations have demonstrated that the said dif...
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after making the foregoing statement, delivered the opinion of the court. The court does not assign any special reason for its deduction that plaintiff’s lien is superior to the liens of the various defendants, etc., but we infer the conclusion was drawn from the finding of fact that “No certificate of attachment was filed by the said sheriff in the office of the recorder of conveyances or of the ...
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delivered the opinion. This cause was instituted by H. F. Fischer against Beal Gaither, T. H. Horning, B. F. Jones, J. J. Gaither, Alfred Stanton, Peter McDougal, and William J. Wade, to compel contribution by solvent co-sureties. The plaintiff alleges, in substance, that on February 17,11891, Beal Gaither, as principal, and the other defendants and himself, as sureties, executed to one I. it. Daw...
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delivered the opinion. This is a suit to restore the original conditions of a promissory note which it is alleged were changed by the payee, under mistake and misapprehension of the rights and agreements of the parties, and to recover thereon against the makers. It is also sought to subject certain property to the satisfaction thereof, which it is alleged was transferred by Tice to Herrall, in tru...
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delivered the opinion. This is an appeal from a judgment rendered in favor of J. W. Guild, now deceased, for rent alleged to be due on a written lease executed by him February 14, 1894, whereby, in consideration of an annual rental of $100, payable half-yearly, and other covenants, he leased and demised to the defendants, according to the description contained therein, “the following described str...
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The only question presented by this appeal is as to whether the District Court erred in excluding the evidence offered by the defendant to prove that the two lateral ditches in controversy were not appurtenances to the main ditch, a one-third interest in which the plaintiff purchased of defendant, as shown in the statement of the case. The lateral ditches are not mentioned in the deed executed by ...
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—It appears by the record that when the appellant Omar Hoskins purchased the two lots involved in this suit from the Kalispell Townsite Company, in addition to agreeing to pay therefor a money consideration, he contracted to put a building on the property. It was, accordingly, under a contract to erect the requisite building that plaintiff did the work and supplied the material for which he origin...
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This action is brought by Robert Porter, for himself and all other persons similarly situated, as an original proceeding inmandamus in this court, against the board of county commissioners of Kingfisher county, Oklahoma, and J. B. Cockrill, county clerk of said county, to compel the said board of county commissioners to levy a sufficient tax to maintain separate schools for the colored children of...
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This is an application for a peremptory writ of mandate to compel the state auditor to issue a warrant in favor of the petitioner for services rendered under and by virtue of the provisions of section 1685 of the Eevised Statutes of 1887, which is as follows: “The controller or attorney general may employ other counsel than the district attorney and the expenses must be paid out of the territorial...
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This is an appeal from an order of the district court of the county of Blaine overruling a motion for a new trial. The facts, as they appear from the record, are substantially as follows: The plaintiffs, creditors of one Warren P. Calahan, instituted suit against said debtor, wherein they caused to be issued a writ of attachment against the property of the debtor, which attachment was levied upon ...
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The plaintiff below (respondent here) obtained judgment, and filed his memorandum of costs and disbursements. Within five days thereafter, the defendant (appellant here) served and filed notice of motions, which were, in effect (1) to strike plaintiff’s memorandum of costs from *693the files; or, failing in that (2) that the costs be taxed by the court. In support of the motion, defendant filed th...
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This is an appeal from an order made by the district court of the third judicial district sitting in and for Ada county, denying the motion made by the plaintiffs (appellants here) for a change of venue on the ground that the district judge was disqualified from acting as judge in the cause, he having been attorney for the defendants. Said motion was supported by affidavit. The defendants opposed ...
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ADJUSTMENT OF MATTERS GROWING OUT OF ORGANIZATION OF A NEW COUNTY. – When boards of county commissioners have made adjustment and settlement of matters growing out of the organization of a new county, such settlement and adjustment will not be disturbed in the absence of a showing of fraud or mistakes. STATUTE OF LIMITATIONS – SUBSECTION 1 OF SECTION 4054 CONSTRUED. – Under the provision of subdiv...
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The respondent was tried in tbe probate court in and for the county of Ada, upon a complaint charging him with the offense of conducting a faro game, as employee of another, was convicted, and sentenced to pay a fine of $200. From said judgment of conviction the respondent appealed to the district court in and for said Ada county. In the district court"the said respondent demurred to the said comp...
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The appellant, as administrator of the estate of Milton Kelly, deceased, brings action to subject to adminis*731tration certain property alleged to have been conveyed by tbe ■decedent in his lifetime to Ms daughter, one of the defendants, in fraud of creditors. It is conceded by plaintiff that there was no intent of fraud by the decedent in making the conveyance, but he contends that the presumpti...
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This is an action in ejectment. It is alleged in the complaint that on the twentieth day of December, 1890, the plaintiff (who is the respondent here), was the owner and seised in fee of the premises described in the complaint, and alleged ouster by the appellant, the Boise City Bail-way and Terminal Company, a corporation, on or about the twentieth day of May, 1893. The answer specifically denied...
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(After Stating the Facts.) — The appellant specifies numerous errors, and among them the insufficiency of the evidence to justify the findings and decisions of the court. Upon a careful examination of the evidence, we are unable to find any substantial conflict therein. The main contention is over the proper construction of that clause of said contract of settlement which requires Bradbury to proc...
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The trial court made the following findings of fact, the cause having been tried before the court without a jury, to wit: “1. That from the fifteenth day of December, 1886, to the thirtieth day of April, 1888, one A. D. Thompson was the owner in fee of the property in litigation in this case, and which is described as follows, to wit: ‘Lot No. twelve (12) in block No. two (2) of the town of Mounta...
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On .the twenty-first day of January, 1893, tbe defendants, A. Bauch and Margaret E. Bauch, his wife, executed. and delivered to the plaintiff, through its agent at Moscow, Latah county, Idaho, two promissory notes, for the sum of $500 each. Both of said notes bore interest at the rate of ten per cent per annum, and in each was a provision for the payment of an attorney’s fee of fifty dollars in ca...
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This action was commenced by the plaintiff to foreclose a mortgage. Judgment of foreclosure was rendered April 6, 1895, On February 3, 1897, the defendant Susan L. Curtis served notice of motion and statement of motion to set aside the judgment, for want of jurisdiction in the court to render said judgment, which motion was heard on February 26, 1897, and, by order of the trial court, overruled, f...
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By an act of the legislature of the state of Idaho, approved March 6, 1893, the county of Bannock was organized out of territory theretofore included in, and comprising a part of, Bingham county. Section 6 of said act is as follows: “The indebtedness of the county of Bingham at the date this act takes effect, shall be apportioned between the said county and the county of Bannock, as follows: All m...
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This is an action to foreclose a mortgage executed by J. B. Green and Jessie W. Green, busband and wife, in favor of the appellant corporation. Green and wife made default. One W. B. King was made a defendant, but filed a disclaimer of any interest in the subject matter of said suit. W. Mackintosh intervened, and demanded the foreclosure of a subsequent mortgage executed by said Green and wife upo...
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The defendant was informed against upon the charge of larceny in the stealing of “one head of livestock, to wit, one bull calf, of the property of James H. Connaughton.” Epon arraignment upon said information, the defendant interposed motion to quash the information, upon the following grounds: “1. That said information fails to state or disclose that the defendant has had a preliminary examinatio...
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The plaintiffs (appellants here) brought their suit in the court below for a partition of certain lands described in the complaint, and in which they claim to be part owners, and tenants in common with certain of the defendants, The facts of the case, as they appear in the record, are substantially as follows: John L. Stephens, in 1867, married the mother of plaintiffs, who is known in the record ...
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This is an action brought by the plaintiff against defendants upon a promissory note, a copy of which is set forth in the complaint, and is in the words and figures following: “$5,000.00. Hailey, Idaho, 29th August, 1887. “One day after date, without grace, for value received, we jointly and severally promise to pay to the order of McCornick & Co., five thousand dollars, negotiable and payablei at...
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On the 1st day of June, 1892, De Wit Stevens, Ida E. Stevens, and G. G-. Stevens, three of the appellants here, made and entered into a contract with the Home Savings and Loan Association of Minneapolis, Minnesota, a corporation, the respondent here, in words and figures as fol= lows, to wit: “$2,500. Tacoma, Washington, June 1, 1892. “Received of the Home Savings and Loan Association of Minneapol...
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The opinion of the co,urt was delivered by This action was brought June 29, 1893, by the Argentine Bank against James McDonald, Samuel Johnson, Mitchell Johnson, Annie Hayes, James T. Cuff, Mary B. Schiefer (formerly Cuffj, Christian Schiefer, Thomas J. Bradbury, D. Hubbard, and H. A. Taylor, to charge Annie Hayes, James T. Cuff, and Mary B. Schiefer, as makers, and Mitchell Johnson and Samuel Joh...
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Fred J. Harris was a beneficiary member of a mutual benefit society, and Ms life was insured therein for the sum of three thousand dollars. He died on October 7, 1895, and thereafter this sum was paid by said society to Ella M. Harris as his beneficiary, upon her surrender of the beneficiary certificate. A part of the money so received was deposited by the beneficiary in the First National Bank of...
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The opinion of the court was delivered by This was an action originally brought in the district court of Wyandotte county by the plaintiff in error against the defendant in error, to recover the possession of a certain piano, under the provisions of a sale note given by the defendant to the plaintiff on September 12, 1892. In answer to the petition, the defendant set up, substantially, that the p...
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The opinion of the court was delivered by The plaintiff in error sued the defendants in error before a justice of the peace upon an account, and obtained judgment. The case was taken to the district court by petition in error, reversed, and retained'for a new trial. Upon the trial in the district court, a demurrer to the plaintiff’s evidence was sustained and the defendants had judgment for costs....
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The opinion of the court was delivered by John Atherton, a creditor of the United States Savings Bank, of Topeka, a Kansas corporation, brought an action in the district court of Shawnee county, on November 22, 1892, to charge W. E. Sterne, as a stockholder of said corporation, with its indebtedness to him. The petition was demurred to on the ground that it did not state facts sufficient to const...
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This action was brought by Caroline E. Eoss against John M. Marshall, Catherine Marshall, George M. Noble, S. G. Bailey, the Kansas Loan and Trust Company, and the Trust Company of America, in the District Court of Osborne County. The petition set forth the execution and delivery, by John M. Marshall and Catherine Marshall, of a certain note and interest coupons, and a mortgage securing the same, ...
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*25The opinion of the court was delivered by Objection is made to the consideration of this case, because, it is said, it does not appear that a motion for a new trial was filed at the term at which the verdict was found and the judgment entered. In this counsel are mistaken. It does so appear from the record. The verdict was returned and filed on May 12, 1894. The motion for a new trial was file...
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The opinion of the court was delivered by This was an action in the district court of Cloud county, brought by the defendant in error to recover certain real estate upon which she held tax deeds. A trial was had at the January term, 1891, at which the court found for the defendant, to which the *190plaintiff excepted and brought the case to this court of appeals on a petition in error. This court...
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The question presented in this case is the construction of a deed under which the defendants in error claimed title. This deed was made by Emma F. Dexter and her husband to Betsy Marsten. The defendants in error, William Docking and others, claimed as the grantees of Betsy Marsten. The deed of EmmaE. Dexter, after describing other property, contains the following description, oyer which the conten...
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The plaintiff in error contends that the court erred in entertaining the motion of the defendants, first, because the court had no jurisdiction of the parties or subject-matter after the adjournment of the term of court at which the order confirming the sale was made ; second, because chapter 109, Laws of 1893, is not applicable to contracts made prior to its passage. The defendants were present w...
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This action was brought in the court below by the plaintiff in error to enjoin the collection of certain taxes levied and assessed against lands owned by it, situated in Smith County. The case was tried upon an agreed statement of facts. From the pleadings and agreed statement of facts, it appears that, on the ninth day of August, 1887, the plaintiff in error, which was the owner of the land in qu...
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The plaintiff in error brought suit with attachment against B. F. Smith in the District Court of Smith County. The defendant in error Charles E. Wood intervened, claiming to have a chattel mortgage upon the attached property. The only question presented for decision in the case is the validity of the mortgage. It is contended by the plaintiff in error that the mortgage is void because there was in...
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The plaintiff in error sought to enjoin the collection of taxes for municipal purposes levied upon its property by the City of Kensington. A part of the land is platted into lots and blocks and was so platted at the time of the attempted incorporation of the City, and a part of it was used exclusively for agricultural purposes. The evidence shows that it is not in any manner needed for city purpos...
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The plaintiff’s brief contains no formal assignments of error, but in lieu thereof propounds four questions : I. Does the clause in the mortgage so change the terms of the contract as to release R. B. Ward? There is but one answer to this question. The modification of the contract was such as would necessarily discharge the surety if made without his knowledge or consent. This question, however, w...
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On May 4, 1897, a complaint was filed in the police court of Lincoln Center, charging the appellant with violations of certain ordinances of said City, in twelve different counts, the first four of which charged violations of ordinance number 113, and the others, violations of ordinance number 152. A trial was had, and the defendant was found guilty of a violation of ordinance number 152 as charge...
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This was an action to recover for personal injuries received by defendant in error in a railway accident. Judgment in the lower court was for defendant in error, who was plaintiff there. Doctor Hoover, a witness for plaintiff below, refer*348ring to an examination of defendant in error made some weeks after the accident, said: “I ascertained from the examination of the man, from the history that I...
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The plaintiff in error filed a petition in the District Court for the purpose of having reviewed a survey and report of the surveyor of Saline County, establishing the boundary lines between the lands of the plaintiff and defendants. Upon motion of the defendants, the District Court dismissed the petition for the reason that it had no jurisdiction to review the proceedings upon a petition in error...
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On July 20, 1895, the plaintiff in error filed a petition in the District Court of Republic County, against the defendants in error and Bartlett Brothers, to foreclose a real-estate mortgage of fifteen hundred dollars -and interest, given by the defendants in error to said plaintiff. On July 22, 1895, Bartlett Brothers filed their answer setting up a second mortgage on the same land in their favor...
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Section 81 of the Code provides : “When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title,” etc. Judge Story says : “A purchase made of property actually in litigation, pendente lite, for a valuable consideration ...
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If the judgment remained as it was originally — a judgment in the nature of a judgment in rem only — it could not be used as evidence of indebtedness in the court rendering it, or in any other. See the opinion of Mr. Justice Miller, of the United States Supreme Court, in Cooper v. Reynolds, 10 Wall. 308; Iles v. Elledge, 18 Kan. 296; Amsbaugh v. Exchange Bank, 33 id. 100; Pennoyer v. Neff, 95 U. S...
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1withdrawn and authenticated. I. The first question presented for our consideration is a motion to dismiss the petition in error, for the reasons, first, that the certificate of the trial judge to the case-made is not attested by the signature of the clerk and the seal of the district court, and second, that the case-made has not been filed with the clerk of the district court. The case-made prese...
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The defendant in this case was charged with having on the 22d day of September, 1896, in Garfield county, committed an assault on one Louie Talbot, with an intent to commit rape. The jury found the defendant guilty, and he was sentenced to imprisonment in the state penitentiary at Salt Lake City for a period of 18 months. Tin* defendant appealed from the judgment, and alleges that the evidence was...
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This was an action by plaintiff and appellant to recover certain sums of money alleged to be due by defendant and respondent as a license fee for carrying on the business of a merchant tailor. The case was submitted on an agreed statement of facts, reciting, briefly, that the defendant is a merchant tailor at Helena, dealing in the selling of suits of clothes which he makes to order for his custom...
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This action was submitted to the District Court of Carbon county upon an agreed statement of facts, showing that plaintiff, a national banking association, having its place of business at Billings, Yellowstone county, Montana, is, and has been since March 1, 1896, the owner of 4,500 sheep, together with some other personal property, such as horses, wagons, and hay, used in the keeping thereof, sit...
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A. F. Moffat, defendant and appellant, was convicted of larceny in the first degree, or grand larceny, and sentenced to the penitentiary. He appeals from the judgment of conviction, and from an order denying his motion for a new trial. The notice of appeal in this case recites that ‘ ‘defendant appeals to this court from the judgment of conviction of larceny in the first degree, rendered against h...
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There are several assignments of error directed to the action of the court in admitting in evidence the patent to the Nine Hour Lode Claim, and the mesne conveyances of the predecessors in interest of the plaintiff by which they conveyed their interests in said mining claim to the plaintiff. These muniments of title are objected to because they do not specifically include, as appellants contend, t...
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The principal assignment of error in the case is that the ‘ ‘verdict is not supported by the evidence, and appears to have been rendered under the influence of passion and prejudice.” It is the well-settled general rule of law, especially in this jurisdiction, that a verdict will not be disturbed when there is simply a conflict in the evidence, — where there is evidence sufficient to support the v...
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(1; Appellant (defendant) contends that its motion for judgment on the pleadings in action No. 878 should have been sustained, upon the ground that the replication did not deny the averment in the answer of want of authority in Bidgway to execute the note in its behalf; the theory being that such averment was new matter, constituting a defense, and therefore admitted for want of denial. We are sat...
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The facts sufficiently appear in the opinion. Frank H. Norcross, for Relator. The City of Reno is incorporated under the provisions of that certain act entitled "An act to incorporate the town of Reno," approved March 8, 1897. The respondents were named in the act as constituting the city council for a certain term, at the expiration of which they should be succeeded by members chosen at the gener...
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The facts sufficiently appear in the opinion. It is shown by the complaint that a claim against decedent's estate was presented to the respondents upon the 13th day of October, 1896, and disallowed by them upon the 24th day *Page 220 of March, 1897. Action for the purpose of establishing the claim was commenced upon the 17th day of June, 1897. Respondents interposed a demurrer to the complaint up...
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The sufficiency of the complaint is the only question before the court upon this appeal, judgment having been entered upon an order sustaining a demurrer thereto. A condensed recital of the main facts disclosed by the pleading becomes necessary. The First Presbyterian Church of Los Angeles was composed of about eight hundred members, and was incorporated according to the laws of the state. As such...
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Under an order made by the superior court for the sale of certain real property belonging to the estate-of the above-named decedent, the administrator sold the same' to the respondent and thereafter made a return of his proceedings and asked for a confirmation of the sale. Upon the hearing the purchaser objected to the confirmation, and asked that the sale he set aside, upon the ground that the pe...
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Appeal from judgment and order denying a new trial. The action involves the rights of the parties in two certain notes and mortgages executed by one Kunz to defendant, which plaintiff claims to own by virtue of an assignment and delivery thereof to her, made in defendant’s name by one C. E. K. Royce, claiming to act as attorney in fact for defendant under an alleged power of attorney from defendan...
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The plaintiff seeks by this action to recover the rent of certain lands demised by him to the defendant. The defendant malees no issue upon his liability for the amount claimed, but alleges in his answer that the plaintiff is only the agent of his wife, who is the owner of the land, and prosecutes the action in her behalf; that the demised land is contiguous to certain lands of his own; that he ha...
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Appeal from an order vacating a judgment entered upon default. The above-entitled action was brought in the superior court of Colusa county on October 3, 1895, to recover from the defendants the sum of sixteen hundred dollars on a promissory note. On October 21, 1895, upon petition of his creditors, Scott was adjudged an insolvent debtor. On October 26th, the plaintiff presented and proved his cla...
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The Commercial Bank of San Luis Ohispo, a creditor of the estate of said decedent, filed exceptions to the final account of M. F. Burke, the administrator of said estate, and its exceptions having been disallowed, and the said account having been settled and approved, said bank appeals. The inventory of said estate was filed May 22, 1893, showing the assels to he of the value of $59,986.50, and th...
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The court below sustained a demurrer interposed by defendant Houghton to the complaint, and entered judgment dismissing the action, from which plaintiff appeals. The only question involved in the appeal is whether the complaint states a cause of action. *547The averments of the complaint, so far as material here, are in substance that W. T. Sayward, plaintiff’s intestate, being the owner of three ...
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The mayor and common council of the city of San Jose passed a resolution August 26, 1895, of their intention to order certain improvement of Santa Clara street between Third and Eleventh streets, in said city, and this resolution having been posted and published as required by law, subsequently passed a resolution ordering the work to be done. Under proceedings regularly taken therefor, a contract...
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This appeal involves the validity of an order of the superior court declaring the Visalia City Water Company, a corporation, an insolvent debtor. The proceeding was-inaugurated by the creditors of the corporation, and the petition was filed February 8, 3896. Upon its face it appeared to have been verified by three creditors at Los Angeles February 6, 1896> and by two creditors in the county of ...
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Appeal by defendants from an order denying them a new trial. The action is to recover certain installments alleged to be due plaintiff under a contract in writing between him and defendants which, by its terms, provided that if plaintiff, through his efforts, labor, and services, should procure and obtain for defendants from his father, Dr. Ryer, the owner of certain premises, a lease thereof for ...
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The principal objection urged by appellant, that section 176 of the Civil Code does not contemplate or warrant the character of relief sought in the action and awarded by the judgment below, was, after very mature consideration, decided adversely to appellant’s contention in Livingston v. Superior Court, 117 Cal. 633, 38 L. R. A. 175, 49 Pac. 836—an original proceeding, resting primarily upon the ...
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The prisoner was convicted and is imprisoned upon a charge that he “did willfully and unlawfully use a shotgun of a larger caliber than that commonly known and designated as a No. 10 gauge, to wit, a No. 8 gauge.” This is in the language of the statute defining the offense (Pen. Code, sec. 627, as amended March 9, 1897; Stats. 1897, p. 92), but still it does-not sufficiently charge the offense, be...
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The estate of Ann Callaghan, under administration in the probate court, being in a condition to warrant a partial distribution, petitions for such partial distribution were filed by Daniel T. Callaghan, son of the decedent, and Mary A. Bailey, daughter of the decedent, and certain of said Mary’s children. Said Daniel and Mary were the only surviving children; and the petitions for distribution exc...
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The petitioner is imprisoned under a judgment convicting him of defrauding an innkeeper. He demands his release upon the ground that the statute creating the offense has been repealed. On March 10, 1887, a statute was enacted under the following title: “An act to add a new section to the Penal Code, to be known as section 537, relative to personal property mortgaged.” March 1, 1889, another statut...
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This is a hearing upon an original application for a writ of certiorari. The uncontradicted facts disclosed by the record are the following: The assignee of the estate of Alfred Clarke, an insolvent debtor, applied to the superior court sitting in the insolvency proceeding for permission to sell certain personal property of the estate of the insolvent. The property was second-hand waterpipe laid i...
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This action was brought by plaintiff to recover $104,581.72, the proceeds of certain swamp and overflowed and lake lands. A demurrer to the amended complaint was sustained, and, plaintiff declining to amend, judgment passed for defendant, from which this appeal was taken. Briefly summarized, the amended complaint sets forth that plaintiff county was-duly organized on May 29, 1893, and embraced cer...
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The defendant is assessor of the city and county of San Francisco. The plaintiffs are residents of San Francisco, and in March, 1895, in response to defendant’s demand, made a return shoving that they were owners of personal property in said city and county subject to taxation for the ensuing fiscal year, but owned no real property. The defendant assessed their personal property, and on May 20, 18...
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[After stating the case as above] It is maintained by defendant that the affidavit in this case is not only insufficient but void and in effect no affidavit at all, and therefore not amendable. Under our code of civil procedure all actions are commenced by filing a petition and precipe for summons, and attachment proceedings are always ancillary. The same particularity of statement in the affidavi...
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The plaintiff during the years 1890, 1891, and 1892 was a regularly licensed Indian trader and post trader, residing upon that part of the Shoshone Indian reservation used and occupied as a military post of the United States. During each of those years he owned cattle and horses which were kept, herded, and ranged upon said Indian reservation, with the consent of the Indians whom he paid for the p...
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This was a suit on two promissory notes for $300 and $400, respectively and interest,. executed and delivered by defendant to one S. B. Me Intyre, and by him indorsed and delivered before maturity to the plaintiff in error. The defendant filed a general denial, and also pleaded that the note for $400 was in part payment for a horse sold by McIntyre to him for $650, that McIntyre failed to deliver ...
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On Petition for Rehearing. On application for rehearing counsel for plaintiff in error again adverts to the evidence, and insists that it is insufficient to establish either the making of an assault, or an intent to commit murder. The authorities cited by counsel upon the proposition that there was no evidence of an assault do not support his contention. Yoes v. State, 9 Ark., 42, was a case of as...
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Mary Brophy, a widow lady, was a member of the Roman Catholic Church and a believer in its faith and doctrines. She was possessed of an estate consisting of personal property alone. She died, after having executed a will in which specific legacies in money were given to her children and grandchildren. A residuary sum was bequeathed in the following language: “I give and bequeath to Rev. James Coll...
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This case involves the title to part of an island in the Arkansas River, opposite the mouth of the Little Arkansas. In the year 1867, the lands lying along that part of the Arkansas River were surveyed by authority of the Government. In making such survey both sides of the river were meandered, and no notice was then taken of this island. It was not indicated on the plats of the survey. In 1869, W...
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The executors of the will of James M. Gillis, deceased, brought suit in the District Court of Shawnee County against Nelson Giles, jr., D. E. Sowers, and others, to recover judgment on three promissory notes, for $4,000 each, executed by Giles and wife, and to foreclose a mortgage, on a quarter section of land near Topeka, securing the same, executed by the same parties. The petition alleged that ...
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H. G. Johns, who was engaged in the practice of law at Hutchinson, Kan., died intestate, leaving no widow surviving him, but only a child, who was self-supporting, was more than twenty-one years of age, and a non-resident of the state. He owned, and died in the possession of, a law library, valued at $2,457.50, the right to which is the subject of the present controversy. The substantial point of ...
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J. A. Gilmore, E. E. Gilmore and L. O. Gilmore were joint administrators of the estate of their father-, E. Gilmore, deceased. The defendant, L. C. Gilmore, was removed from the administration by an order of the probate court, which on appeal to the District Court was affirmed. L. C. Gilmore was the cashier of the National Bank of Paola, the other defendant in the case. He had received $12,841.19 ...
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This was an action in the nature of a creditor’s bill. The Emporia Hardware Company, a corporation, was insolvent; and while so, executed to the Emporia National Bank, as a preferred creditor, a mortgage to secure its claim. Two days thereafter, the Hardware Company made an assignment, under the statute, for the benefit of its creditors, j Subsequently, the plaintiff in error, a corporation and a ...
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The plaintiffs in error, as the widow and children of James Harrison, brought this suit on a certificate of membership in the Masonic Mutual Benefit Society issued to him on the twenty-ninth of October, 1879. It is alleged in the amended petition that all dues and assessments payable by the terms of the certificate for and including the year 1883 were duly paid; that iu the year 1883, and prior to...
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The Rock Island Lumber & Manufacturing Company brought this action to recover from the Board of Education of the City of Wellington $2,596.38. In its petition the Company alleged in substance that, on August 21, 1890, A. R. Elliott entered into a contract with the Board to furnish the material and erect a school house on 'ground owned by the Board ; that Elliott purchased from the Com*43pany lumbe...
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'W. C. Long brought this suit against the City of Emporia, alleging in his petition that he was the owner of certain lands therein described, and bounded by the centre line of the Cottonwood River ; that the defendant, a city of the second class, had constructed a sewer emptying into the river ninety rods above the west line of the plaintiff’s land; that prior to the construction of the sewer the ...
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The plaintiff in error sued to foreclose a mortgage on real estate. One of the defendants died, and an order of revivor was procured. The defendants moved to dismiss, with prejudice to a future action, because the order of revivor was irregularly obtained and because the time for re-institution *56of the suit was barred by statute. Pending the decision of this motion, the plaintiff offered to dism...
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The defendant in error shipped his race horses, over the line of railway of plaintiff in error, from Fredonia to Pittsburg, Kansas. At the intermediate station of Columbus, the train upon which the animals were carried negligently collided with another train of the plaintiff in error. The horses were injured as a result of the collision. A suit for damages was instituted and a verdict and judgment...
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This was an action by Winston Rierson to recover from the St. Louis & San Francisco Railway Company a strip of land which had been used as a righ t of way for its railroad since the early part of the year 1880. The land over which the right of way was located was a part of that ceded to the United States by the Great and Little Osage Indians through the treaty concluded September 29, 1865, and pro...
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Calvin Hayes was prosecuted by an information alleging that, in November, 1896, he was *62“ employed as the agent and bailee of Thomas W. Pelham ” ; and that “ said Calvin Hayes then and there, not being a clerk, apprentice or servant within the age of sixteen, years, did by virtue of said employment, then -and there receive and take into his possession two certain car loads of apples containing i...
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In this case we are called on to decide the single question, whether an order of sale issued *52without a seal may be amended by affixing the seal after a sale has been made thereunder by the sheriff. An order of sale was issued on the judgment, but by mistake the clerk failed to affix the seal. The omission was not discovered until after a sale had been made of the property described in the order...
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This was an action to recover the amount of a promissory note and to foreclose a mortgage given to secure it, brought by plaintiff in error against Peter Busenbark, the maker of the two instruments. To the action, Newell P. Busenbark and Alice, his wife, and A. J. Eggleston and Sarah, his wife, were made defendants, under an allegation that they “ have or claim some interest in, or title to the sa...
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This was a proceeding-by the State of Kansas, brought upon the relation of the county attorney, to remove J. B. McPherson from the office of county clerk of Sheridan County. An order was made by the board of county commissioners authorizing the payment of a bounty of five cents each for rabbits, and one dollar each for wolves, captured and killed within the limits of the county of Sheridan. The sc...
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The opinion of the court was delivered by The defendant in error sued the railway company to recover the value of horses alleged to have been killed by the railway company. He sought to recover, first, under the statute of 1874 making railway companies liable for such damages without regard to negligence in case they failed to properly fence their right of way ; and, second, for the reason that t...
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The opinion of the court was delivered by This is an action for the wrongful conversion of 405 bushels of wheat, of the value of $202.50. The Bank of McCracken held a first, and Ed. F. Madden, plaintiff in error, a second mortgage, given by N. B. Drummond, on the wheat in controversy and other personal property. Drummond, with the knowledge and consent of the Bank of McCracken, sold to the defenda...
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The opinion of the court was delivered by This action was commenced in the district court of Kiowa county by the plaintiff in error against the defendants in error to foreclose a mortgage upon certain lands in that county. The petition alleges the execution and delivery of the note and mortgage and a default thereon. The- answer of the defendants is an unverified general denial. Judgment was rende...
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The opinion of the court was delivered by The plaintiff in error filed its petition in the district court of Pratt county, alleging that Ernest G. Hegwer and Mary C. Hegwer had *690executed and delivered to Collins & Hegwer a certain promissory note and a real-estate mortgage, pledging the northeast quarter of section 15, in township 27 south, of range 11 west of the sixth principal meridian, as ...
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*704The opinion of the court was delivered by E. Howland commenced this action to foreclose a mortgage upon a tract of land in Stafford county, the debt secured thereby being evidenced by ten notes of eighteen dollars each. Joseph Sparks and wife, who gave the mortgage, Geo. H. Burr, the State Bank of St. John and others were made defendants. The petition alleged that the notes and mortgage had be...
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Error from Cowley district court....
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The opinion of the court was delivered by Action by Coley against Krider under paragraph 1204 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 66, § 49), to charge the defendant as stockholder in the State Bank of Oberlin on a debt of the bank to the plaintiff. The only question presented is the sufficiency of the *350petition. The defendant first demurred to the petition upon the ground of -...
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The opinion 'of the court was delivered by On October 1, 1891, the plaintiffs filed their petition in the district court of Hamilton county, against the defendant asking damages in the sum of $441 and interest, alleging in substance that the defendant had failed to furnish them water from its canal, as it had agreed to do in its contract with plaintiffs, dated May 2, 1891, and for destruction of p...
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The opinion of the court was delivered by This action was commenced by the defendant in error in the court below to recover damages for the killing of his mule. In his petition he alleged: "That the company had failed to fence its track in "Greeley county at the date of November 27, 1893, and on the night of said day the railway company, through the carelessness and negligence of its agents, serva...
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The opinion of the court was delivered by The writ herein was granted by the writer of this opinion on November 27, 1897, and the hearing set down for December 14, 1897, the first day of the December term of court at Garden City. Petitioner in the meantime gave bail fixed in the order for the writ. By agreement of petitioner and the sheriff of Pawnee county and counsel representing the prosecutrix...
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The opinion of the court was delivered by This action was brought against plaintiff in error in the district court of Butler county by defendants in error to recover damages for the death of their infant son. It is alleged by defendants in error that on the third day of March, 1892, Bertie Prewitt, an infant of the age of two years and four months, was on the railroad track of plaintiff in error ...
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The opinion of the court was delivered by The défendant, Marley, was the owner of the Oswego House, subject to a mortgage for $8000 thereon in favor of the plaintiff, Condon. The latter foreclosed his mortgage, caused the mortgaged premises to be sold under the decree of foreclosure, and became purchaser of the property at the sheriff’s sale, the purchase price being $7000. The sale was made *384i...
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*395The opinion of the court was delivered by This was an action brought by ■the defendant in error, Stella Brown, in the district court of Crawford county, to recover for personal in-j ury sustained by her while working for the plaintiffs in error at a mangle in a laundry. The petition charges negligence, both generally and specifically. The answer is general denial and contributory negligence. ...
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*373The opinion of the court was delivered by Edna Jones brings these proceedings in error to review the ruling of the district court of Elk county, sustaining the defendant’s demurrer to her petition. The petition alleged that on July 22, 1891, the plaintiff, being then and ever since duly qualified as a school-teacher, entered into a written contract in due form with the school board of the defe...
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The opinion of the court was delivered by This action was commenced by W. F. Thayer in the district court of Harper county to foreclose a mortgage on certain real estate. A judgment was-rendered, an order of sale issued, and the land was .sold to W. F. Thayer, plaintiff in error. On-the 3d day of February, 1892, this case was heard on the motion of plaintiff in error to confirm the sale. No eviden...
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The opinion of the court was delivered by The principal allegations of the petition of plaintiff, who sued as the receiver of an insolvent *392water-works Corporation, on behalf of its bondholders, to perpetually enjoin the payment of a warrant drawn upon the treasurer of a city of the second class and delivered' by it to the corporation, and by the latter assigned to two of the defendants, were t...
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The opinion of the court was delivered by This action was commenced by plaintiff in error in the district court of Franklin county, to require defendant in error to surrender to plaintiff in error the office of treasurer of school district No. 20 in Franklin county. The cause was submitted to the court on an agreed statement of facts. The court found and rendered judgment in favor of defendant in...
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The opinion of the court was delivered by In this case Henry Hart recovered a judgment based upon a verdict in the sum of eighty dollars damages and forty dollars as attorney’s fees against the Wichita & Western Railway Company, for injuries alleged to have been done to a gelding, a mare and a young colt by the engine and cars of the company frightening the animals and causing them to run from th...
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*551The opinion of the court was delivered by Defendant in error, as plaintiff, recovered a judgment based on the verdict of a jury, in the sum of $139, as damages and attorney’s fees, in the district court of Kingman county, against the Wichita & Western Railway Company. The plaintiff’s bill of particulars alleged that a four-year-old filly belonging to him, and valued at ninety-nine dollars, ha...
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The opinion of the court was delivered by The plaintiffs in error commenced this action in the court below to recover damages for the alleged permanent appropriation of a strip of land ■by defendant in error for a right of way for its road. In the petition damages are claimed for the permanent appropriation of a part of the property, and, by reason of this appropriation, damages to the remainder....
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The opinion of the court was delivered by To review a judgment in the sum of $321.97 rendered against him in the district court of Coffey county in favor of defendant in error, D. F. Dumbauld, the defendant below, Uriah Dull, brings these proceedings in error. The petition alleged substantially the following: That Dull, as agent for Dumbauld, undertook to buy 215 head of cattle for the latter, the...
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The opinion of the court was delivered by On November 15, 1895, William Ford brought an action in the Rooks county district court against the Union Pacific Railway Company to recover *333$250 as damages for killing a jack. Subsequently the plaintiffs in error were made parties by an amended petition. The issues were duly made up and the case tried to a jury and the court. The jury returned a verdi...
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The opinion of the court was delivered by This action was brought by J. WEllithorpe to recover damages for property destroyed and injured by two separate fires, occurring on July 29 and August 10, 1894. ■ The petition contained two counts. The first count was for the fire on July 20, and alleged that it was caused by the careless and negligent management of the train, and a failure to-employ suit...
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Tlie opinion of the court was delivered by This action was commenced by the defendant in error, as administratrix of the estate of Gustav Kroff, against the plaintiff in error, for the use and benefit of the minor heirs of Gustav Kroff, deceased. It is alleged in the petition that the plain*700tiff in error had charge and control of a certain highway on which there was located a bridge, and that ...
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The defendant has been convicted of the crime of forgery, in raising the amount of a check from $2.50 to $850, and also forging certain indorsements thereon, with intent to defraud the State Loan and Trust Company. He is also charged with uttering the check as forged, with intent to defraud said loan and trust company. 1. The demurrer to the information was properly overruled, and likewise the obj...
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Plaintiff, an elector, contested the election of defendant to the office of trustee of American River school district, in the county of Sacramento, and sought to have it adjudged that B. Feraut was elected to said office. The defendant had judgment, and plaintiff appeals therefrom. The evidence is brought up by bill of exceptions. *614This proceeding was brought under the provisions of the Code of...
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The plaintiff claims to be the owner of a lot of land within the boundaries of the city and county of San Francisco, and brought this action against the defendant to quiet its title thereto. The defendant denied the plaintiff’s right to the land, and alleged itself to be the owner of the land, and asked a judgment quieting its title thereto as against the plaintiff. Judgment was rendered in favor ...
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Albert Trescony by his last will and testament disposed of his estate to various devisees, and on April 3, 1894, at the close of the administration of his estate, a decree of distribution was made distributing the estate in accordance with the terms of the will. By this decree one-third of the estate was distributed to the respondents herein, as trustees, upon certain trusts expressed therein, for...
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The facts are admitted and found to he as follows: September 37, 1895, George J. Ainsworth, plaintiff’s testator, executed his note to the Bank of California for $10,000, payable December 30, 1895. He was a customer of the bank, and at his death, October 30, 1895, had on deposit there to his •credit the sum of $5,974.35. On December 36, 1895, the day the note matured, the bank, without the consent...
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An information filed against the defendant charged that in May, 1896, she did “willfully, unlawfully, and feloniously inveigle and entice into a certain house in Sacramento city, county of Sacramento, state of California, one Daisy McCarty, who then and there was an unmarried female of previous chaste character and under the age of eighteen years, to wit, of the age of twelve years, for the purpos...
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Plaintiff brought this action to restrain defendants from taking any further steps under a notice of sale of a certain telephone franchise. The city council of Los Angeles had invited proposals for the sale of a telephone franchise under the act of March 33,1893. (Stats. 1893,p. 388.) Under the notice,the tenders or proposals were to be opened on May 10, 1897. On that day plaintiff filed his compl...
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Application for discharge on habeas corpus. By the decree of divorce between petitioner and her husband the -court awarded her the custody of the three minor children of the marriage; subsequently, the court modified its decree by awarding the custody of the children to the father. From the *636decree as thus modified petitioner took an appeal to this court, which appeal is still pending. After th...
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The defendant was tried upon an information for talcing away from her father a female under the age of eighteen years, without his consent, for the purposes of prostitution. He was convicted, and sentenced to imprisonment at San Quentin for two years and six months, and to pay a fine of one thousand dollars, and he now appeals from said judgment and from an order denying a new trial. 1. A venire w...
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Action for libel, in which plaintiff had verdict and judgment. The lower court set the verdict aside and granted a new trial upon the ground, as expressed in its order, “of error of law occurring at the trial, consisting in the admission by the court, as evidence, of the publication in the defendants’ paper of October 18, 1895, of an article headed, 'After the Stuff,’ and relating to plaintiff, an...
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The superior court sustained a demurrer to the indictment filed herein against the defendant for obtaining money under false pretenses, and the people have appealed from the judgment entered thereon. It is charged in the indictment that the defendant, intending and designing to cheat and defraud one Harriet E. Hoxie of her money and property, proposed and offered to sell and assign to her a promis...
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Plaintiff, Mary E. Dittrich, was formerly the wife of one Frank Gobey; they were divorced by a judgment of the superior court of the city and county of San Francisco rendered in the year 1880, and by the terms of such judgment the custody of their minor daughter, Camille Gobey, was awarded to the wife. On May 10, 1883, said divorced parties entered into a contract in writing providing for the tran...
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The opinion of the court was delivered by Counsel for plaintiffs in error makes the following assignments of error : (1) the court erred in its instructions to the jury; (2) the court erred in overruling the motion for a new trial. While the rule of this court is not complied with by the first assignment of error, in that it does not set out the instruction complained of, yet in the argument by co...
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The opinion of the court was delivered by We cannot consider the first, second, third, fourth and sixth assignments of error in this case, for the reason that it does not affirmatively appear by the record that the motion for a new trial was filed in time — that is, at the term of court at which the trial was had and verdict rendered. No evidence has been, offered which we can consider to overcom...
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*38The opinion of the court was delivered by This action was commenced by the plaintiffs in error in the district court of Shawnee county against the defendant in error." They seek to vacate and enjoin the enforcement of a judgment obtained against them by the defendant in error in the circuit court of Shawnee county. The judgment is challenged as being absolutely void for the reason that the tria...
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The opinion of the court was delivered by The principal question in this case, going to the merits, and presented by counsel in their briefs and arguments, is whether the property involved in the suit was exempt to the principal defendants — the Hudsons — as a homestead. The defendants in error contend that the court ought got to consider the merits of the case because the record is insufficient; ...
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The opinion of the court was delivered by Complaint is made that the seventh finding of fact is not sustained by the evidence. This complaint is directed to that portion of the finding which states that “Catherine Cochran was indebted to Newhart for board and lodging for three years next prior thereto in the sum of $468.” The undisputed facts are, that Catherine Cochran boarded with Newhart for 1...
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The opinion of the court was delivered by This case is before us at this time upon a motion to dismiss the proceedings in error for the reason that it does not appear that the amount or value in controversy exceeds $100. This action was brought by the plaintiff in error in. the court below to recover the possession of certain real estate claimed to have been unlawfully withheld from him. The amoun...
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'The opinion of the court was delivered by This action was commenced by John S. Cunningham, in the court of common pleas of Wyandotte county, against the Kansas City, Fort Scott & Memphis Railway Company. The plaintiff alleged the corporate existence of the railway company, and averred that, on December 27, 1892, in an action pending before a justice of the peace of Wyandotte county, wherein John...
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In this case there was issued an alternative-writ of mandamus requiring the defendant to show cause before this court why he should not issue letters of administration to the relator, based upon an application containing-substantially the following averments : On April 23, 1895, the relator, being then the public administrator of Ravalli County, Montana, made application to the District Court of t...
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The appellant brought suit in the court below, as a taxpayer, to enjoin the board of loan commissioners and the territorial treasurer from attempting to sell, hypothecate, or otherwise dispose of certain bonds issued by said board for the funding of territorial indebtedness, under the authority of the act of Congress approved June 25, 1890, and known as the “Funding Act.” These bonds are alleged t...
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This action was brought to recover damages from the defendant, who was road supervisor of a certain district in Utah county, for removing fences which the plaintiff had erected across a road; the defendant claiming that the road was a public highway. The cause was tried by the court without a jury, and decided in favor of the defendant. The decisive question on this appeal is whether the road in d...
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The facts sufficiently appear in the opinion. Action to recover taxes due for the year 1896, amounting to $1,242, and penalties and costs. The property described, about which there is contention as to value, consists of a certain quartz mill and certain hoisting works belonging to the Alta Silver Mining Company, situated in the Town of Gold Hill, Storey county. The assessor placed the value of the...
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This suit was brought in this court, under the provisions of section 10, article 5 of the constitution of Idaho, to obtain a recommendatory decision, recommending to the legislature the payment of the claim of the plaintiff. The matter was referred to H. E. McElroy, Esq., to take the evi-*786deuce, and to report the same, with his findings, to this court. On the return and filing of said report th...
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The defendant was convicted of tbe crime of grand larceny, and from such judgment of conviction takes this appeal. The facts, as they appear from tbe record, are substantially as follows: Tbe defendant and one Eugene Bandolph and one George Cantwell were, on tbe twentieth day of December, 1896, confined in the county jail of Ada county, and on that day broke jail, and in their efforts to escape re...
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This action was commenced in the district court for Bannock county on July 29, 1893. The plaintiffs sued to recover damages claimed to have been suffered by them by reason of the failure and default of defendant in not keeping and performing the conditions of a contract entered into by *784plaintiffs and defendant for the sale by plaintiffs, and the purchase by defendant, of a certain lot of cattl...
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On February 23, 1897, the respondent recovered judgment against defendants in an action of ejectment for the recovery of certain real estate situate in Bear Lake county, Idaho. It seems that the land in question was of an irregular shape, and that in describing it, both in the complaint and in the judgment, which followed the description in the complaint, an erroneous description of the land was g...
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The complaint contains four alleged causes of action. The first cause is for services alleged to have been rendered at the special instance and request of the defendant in the procuring a continuance of the said defendant in his position as superintendent of the state insane asylum, and alleges that such services were reasonably worth $250. And for a second cause of action it is alleged that plain...
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This is an action to recover possession of a certain right of way for an irrigating ditch in Ada county, on which is situated an uncompleted canal. It is alleged in the ■complaint that on the eighteenth day of January, 1896, one Eagleson located a water right, the water appropriated thereby to be used in the irrigation of certain lands therein described, and that a notice thereof was duly posted o...
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— The respondent, as plaintiff, commenced this action in ejectment to recover lots 9 and 10, in block 42, in the town of Hailey, Blaine (formerly Alturas) county, Idaho. The material averments of the complaint are denied by the answer. The cause was tried by the court without a jury, and findings of fact, conclusions of law, and judgment were made and entered in favor of the plaintiff. The defenda...
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In the view we take of this case there is no necessity of determining whether the trust deed given to the First National Bank of Hailey can be foreclosed by notice and sale, as was done in this case, or whether it must be foreclosed by suit as seems to be required by sections 4520 and 4523 of the Bevised Laws of Idaho. I may say, however, that this court has repeatedly decided that a deed absolute...
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(After Stating the Facts). — In the view we take of this case, there is no necessity of determining whether the trust deed given to the First National Bank of Hailey can be foreclosed by notice and sale, as was done in this case, or whether it must be foreclosed by suit, as seems to be required by sections 4530 and 4533 of the Revised Laws of Idaho. I may say, however, that this court has repeated...
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The facts sufficiently appear in the opinion. The plaintiff duly filed with the Clerk of the District Court of the First Judicial District of the State of Nevada, in and for Ormsby county, his claim against the estate of said deceased, to wit: "Estate of Mrs. William McDonald, deceased, to William Burgess, Dr., for wages from February 15, 1890, to April 13, 1897, as a laborer working for deceased ...
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By the Court, The petitioner applied to this court for a writ of habeas corpv,s, which was granted. It appears that he is held in custody by the sheriff of Humboldt county, by virtue of a commitment, issued from a justice’s court, based on a judgment of that court, which in effect requires the petitioner to enter into bond to keep the peace, etc., and, in case of failure to give the said bond...
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— The plaintiffs brought suit in the district •court for Cassia county to restrain defendant from using the waters of Eaft river from the first day of October tp the first day of April. Upon the filing of plaintiffs’ complaint, an order to show cause at the town of Hailey, in Blaine county, Idaho, on the fifth day of December, 1895, why an injunction should not issue as prayed, was issued, and dul...
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— The defendants in this ease filed a general demurrer to the complaint, which was sustained by the district court. From the judgment dismissing the action the plaintiff appeals. The facts as they appear in the complaint are as follows : Hyrum S. Wooley executed his promissory note to plaintiff for the sum of $4,600, on the twenty-seventh day of February, 1894, and on the same day said Wooley and ...
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— This case has been pending in this court since 1892, but owing to the fact that two members of this *29court were disqualified to consider or decide the case, haying been of counsel in the court below, it has remained undisposed of. The objection no longer existing, and the parties desiring a disposition of the case, it is submitted for decision. There is no bill of exceptions, no assignment of ...
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The appellant assigns as errors the admission of the evidence of witnesses Booth, Mattison, and Holland, as to what the complaining witness told them about defendant’s taking the money, and the giving of the instructions by the court as shown and set out in the statement.- *423The action of the court in admitting the objectionable evidence, and in giving the instructions complained of, is só palpa...
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By this appeal the question is presented whether the board of county commissioners possesses the power to determine, within the maximum limits prescribed by law, the number and compensation of deputies allowed the sheriff. If the board has such power, the judgment of the trial court was right. We shall briefly review the legislation upon the subject. The First Legislative Assembly of the Territory...
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Appellant sued tbe administrator of tbe estate of Samuel Newman et al. to recover for money loaned and obtained a verdict in bis favor. Tbe superior court of Spokane county set aside tbe verdict and granted a *482new trial. This appeal is from that order. The order appealed from recites: . “. . . that this court erred in allowing the above named plaintiff in the trial of said cause, to testify in ...
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The opinion of the court was delivered by The respondent was charged in an information filed in the superior court for Spokane county with the crime of grand larceny. To this charge he plead.ed not guilty, and a jury having been impaneled and sworn, the cause proceeded to trial upon the evidence. At the conclusion of the state’s case respondent’s counsel moved the court to discharge the jury from ...
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The opinion of the court was delivered by Goettinger, appellant Smith’s predecessor in this case, commenced an action in the superior court of Walla Walla county, December 27, 1895, against Smith & Massam, co-partners, to recover $6,763 upon account for merchandise sold and delivered, and on the same day procured a writ of garnishment against respondents as garnishee defendants in the action, all...
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*490The opinion of the court was delivered by The respondent, Loueza Gibson, and the appellant, 33. O. Gibson, were lawfully married in the year 1886 and they have one child, the fruit of said marriage, Bessie O. Gibson, now eleven years of age. On the 16th day of March, 1891, the respondent began an action in the superior court of Garfield county against the appellant for divorce, and the care, c...
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The opinion of the court was delivered by This action was brought upon two promissory notes made by the defendants Wm. A. Jones and J. P. Hendricks in favor of the Puget Sound Uational Bank of Seattle. The notes were for $500 each, and matured, one in sixty, and one in ninety, days. Hpon one of the notes the sum of $279.25 was paid. Some time after their *408maturity they were assigned to the pla...
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The opinion of the court was delivered by The appellant and one John Wilson were jointly charged with burglarizing a saloon building in the city of Seattle and stealing therefrom a quantity of cigars. The appellant, having been awarded a separate trial, was found guilty and sentenced to eight years in the penitentiary, and from the judgment of conviction has appealed to this court. A single error ...
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The opinion of the court was delivered by In the year 1890 Gotthard Grot and wife, owners of certain real property situated in King county, in order to secure their promissory note for the sum of $2,2Y5 executed a mortgage upon said premises in favor of Thomas S. Krutz, who thereafter, for value, assigned said mortgage and the note secured thereby to the respondent Ordway. Subsequent to the execu...
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The opinion of the court was delivered by Plaintiff (appellant here) is a corporation organized under the laws of this state in the year 1890. The business it did was chiefly the purchase of unimproved lands within and near the city of Seattle, the erection thereon of residences, and their sale at an advanced price. Usually part of the purchase money was paid in cash, and the remainder, an amount ...
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*422The opinion of the court was delivered by The Farmers’ and Traders’ Bank of Pullman, a state bank, was dissolved as a corporation by an order of the superior court of Whitman county on the 16th day of March, 1896, on proceedings had therein for that purpose. . The appellants were the directors of the corporation before, and at the time of, the dissolution and became the trustees for the stockh...
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The opinion of the court was delivered by This action was brought by the plaintiff, a corporation under the laws of the state of Washington, to recover a balance of $910.43 for goods sold and delivered to the defendant, a corporation organized under the state of Missouri. Service was had upon the president of the defendant corporation in King county. The defendant appeared specially and moved the...
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The opinion of the court was delivered by Plaintiffs (appellants) seek to set aside and enjoin the collection of a portion of tax for the year 1895 standing on the assessment roll of King county. The tax *418was levied upon property of plaintiffs described as fractional lots three and six of block “ A ” of A. A. Denny’s Addition to the city of Seattle. Upon the city plat is found the description “...
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The opinion of the court was delivered by This action was commenced on the 25th day of November, 1895, in the superior court of Whitman county by the appellant to recover on the principal note of $400 and two coupon notes of $26 each. The appellant alleges that on the 26th day of November, 1895, he filed in said superior court the affidavit of one J. M. Hill and the return of the sheriff of Whitma...
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The opinion of the court was delivered by The plaintiff, in March, 1895, brought this action against the executors of her father’s estate for an accounting. She was the only child of her parents John W. and Lucy Sprague, and was born in March, 1844. Her mother died in May of said year, leaving an estate consisting of several tracts of land containing about 500 acres situated in Erie county, Ohio,...
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The opinion of the court was delivered by The complaint in this action alleges that the appellant is the owner in fee of lot 2, block 42, of Terry’s Second Addition to the city of Seattle, situated at the southwest corner of Seventh avenue and Alder street, said lot being 60 feet wide and 120 feet long, and distant easterly from Yesler Way (a public street) about 130 feet at its southwest corner,...
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The opinion of the court was delivered by On the 26th day of July, 1895, the Fremont Milling Company was, and for some time prior thereto had been, the owner of a milling plant, consisting of real estate, buildings, machinery, etc., and the intervenor and appellant in this case, the Rational Bank of Commerce, had a mortgage upon said milling plant to secure the payment of notes given by the milli...
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The opinion of the court was delivered by This is a suit commenced by plaintiffs in the superior court of Jefferson county to correct and amend a judgment and decree rendered in said court on the 31st day of October, 1895, in which action Henry Bash, Susan W. Bash, B. M. Long, Clementine B. Long and Francis L. Bash were plaintiffs, and Charles Eisenbeis and Eate Eisenbeis were defendants. The bill...
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The opinion of the court was delivered by On the 5th of January, 1897, A. Perry instituted an action against the respondent McClellan, for the purpose of foreclosing a chattel mortgage given on a certain stock of goods. The summons and complaint in said action were placed in the hands of George Gaston, sheriff of Thurston county, Washington, for service. The said Gaston took possession of the stoc...
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Upon the trial below the following order was made and entered: “ This cause called regularly for trial, both parties appearing by their respective counsel, the following jurors are duly impanelled and sworn to try the issues joined herein, to-wit: F. A. Iverson, R. S. Robinson, R. R. Starr, E. Jones, George Hooker, G. Edenholm, J. Sander-son, A. A. Osborn, John Hink, B. F. Leed, D. K. Sickles, J. ...
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The opinion of the court was delivered by Tbe essential facts in this case are briefly as follows: Sarah Woodward, tbe appellant here, and her husband were tbe owners of lot 8 in block 11, D. S. Maynard’s plat of tbe town of Seattle, and one Gustave Wine-bill, who is one of tbe defendants in this action below, leased from them the said lot for tbe term of fifteen years *448from the first of July, ...
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The opinion of the court was delivered by This action was instituted by appellant to recover the possession of certain real estate in the county of Spokane. Both parties claim title through Albert English *435and Sylvester S. Callahan, each of whom was formerly owner of different portions of the land. On April 28, 1894, English and Callahan sold the premises in controversy to one Hilda Grinstead,...
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The . opinion of the court was delivered by This is an action brought by the respondent against the city of Spokane and its treasurer to prevent by injunction the sale of certain of respondent’s real estate to satisfy the assessment made thereon to pay for the grading and improving of certain streets in the city of Spokane on which the said real estate abutted. • The lower court granted the injunc...
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On January 11, 1898, upon an order made by the court, the attorney general filed a motion to strike from the rolls the name of ~W. D. Lambuth, an attorney and counsellor at law in this court. The motion was based- upon offensive and discourteous language used by the attorney in a petition for rehearing filed in the case of J. F. Judge et al. v. Bay Mill Co., ante, p. 269. The language used was as ...
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This action was brought by plaintiff to restrain the defendant, as assessor, from selling certain personal property of the plaintiff for taxes. A general demurrer was interposed to the complaint, upon the ground that the facts stated therein were not sufficient to constitute a cause of action, but there was no special demurrer. The court below sustained the demurrer, refused to allow plaintiff to ...
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The will of the above-named decedent, bearing date February 1, 1886, and five codicils thereto executed by him at various dates thereafter—the last bearing date April 12, 1894—were admitted to probate in the superior court for the city and county of San Francisco, and letters testamentary issued to the executors named therein. In the original will the testator made certain pecuniary bequests, and ...
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Action for the foreclosure of a mortgage. The facts are stated in the opinion rendered upon a former appeal. (Fisk v. Casey, 36 Pac. Rep. 668.) To a complaint in the usual form, the defendant alleges that after the maturity of the note he applied to the plaintifE to ascertain the amount due thereon for the purpose of paying the same and, having the property discharged from the lien of the mortgage...
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The plaintiff brought this action to restrain the defendant Laumeister, as sheriff of the city and county of San Francisco, from selling a certain piece of real estate owned by him in said city, under an execution issued upon a judgment against the plaintiff’s grantor in *940favor of the defendant Weatherly. The defendant Laumeister made default, and the defendant Weatherly answered, alleging that...
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The respondent, Mary F. Fowler, in May, 1896, filed a petition in said estate, the material averments of which were in substance that said decedent died in the state of Washington in 1890, intestate, without any debts, and leaving no estate except a certain described piece of real estate in the county of Sacramento, in this state; that he left as heirs four adult children, all of lawful age, of wh...
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The Renton Coal Company was organized as a corporation under the laws of this state in 1874, and carried on the business for which it was incorporated until January 20, 1894. At that date an agreement was entered into between it and the defendant herein by which the corporation assigned and transferred to the defendant certain real and personal property, and the defendant in consideration thereof ...
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The defendant was convicted of the crime of grand larceny, charged to have been committed on the eighth day of June, 1897, in the county of Solano, by feloniously stealing, taking, and carrying away from the person of one Charles Miller the sum of thirty-six dollars, lawful money of the United States. He moved for a new trial, upon the ground that the evidence was insufficient to establish his gui...
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1. Action for deceit. Verdict and judgment were for plaintiff. It was in substance alleged in the complaint that the defendant, acting by one Hutchings, his agent, obtained permission from plaintiff to place in her house a new piano of latest pattern in order that the same might be exhibited to intending purchasers of such instruments in the neighborhood; in consideration of which permission it wa...
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The board of trustees of the city of San Luis Obispo, having advertised for the sale of certain bonds of the city for the purpose of paying the cost of certain municipal improvements authorised by the voters under the provisions of the act of March 19, 1889 (Stats. 1889, p. 399), the plaintiff, a taxpayer of the city, brought the present action to enjoin the sale of the bonds and the levy and coll...
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An' information was filed in Juab county, charging the defendant with the crime of making an assault upon one Patrick Rhea, with intent to commit murder. Upon trial, the defendant was found guilty of an assault with *206a cleadly weapon,.with intent tcj do bodily harm, without just cause or excuse. Thereupon the court pronounced judgment, and the defendant appealed to this court, alleging errors i...
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In this case the record discloses that on the 2-lst day of September, 1896, complaint in writing was filed, on the oath of Alexander Wilkins, before Charles De Moisey, justice of the peace of Provo precinct, Utah county, Utah, *214alleging that Joseph E. Crook, on the 19th day of June, 1896, at Payson precinct, Utah count3', state of Utah, unlawfully and willfully supplying, providing, and adminis...
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This is an application for a cer-' tificate of probable cause in the case of Gus Wachline, recently convicted of murder in the first degree in Washington Oounty. Section 1440 of Hill’s *205Ann. Laws provides tliat an appeal from a judgment on a conviction stays the execution of the judgment upon filing with the notice of appeal a certificate of a judge of the court in which the conviction was had,...
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after stating the facts, delivered the opinion. *293From the view we have taken of the ruling on the motion for a nonsuit, it is unnecessary to consider the other questions in the case, and we shall therefore assume, for the purposes of this opinion, that all the evidence admitted was competent. The motion for a nonsuit is based upon the theory that the plaintiff failed to prove that the prosecuti...
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This is a motion to dismiss an appeal. The material facts are that on July 10, 1897, the court below dissolved an injunction theretofore issued in the cause, and dismissed the suit. From this decree plaintiff attempted to appeal, and, after serving and filing his notice thereof, filed an undertaking therefor, to which his name is appended as principal, but purported to have been signed “by J. B. E...
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This is an appeal from an order of the superior court in and for the county of Butte modifying an order settling the second annual account of A. H. Crew and F. C. Lusk, trustees under the last will of O. C. Pratt, deceased. The general facts are stated in Crew v. Pratt, ante, p. 131, this day decided, and need not be repeated here. On the twenty-sixth day of March, 1895, the court entered an order...
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On December 31,1894, the state, on the relation of the county attorney, recovered a judgment against The Kansas State Board of Health and the state *19officers who then constituted the executive council, permanently enjoining them from using or paying out what was designated as the cholera fund. This proceeding was brought to obtain a reversal of that judgment, and we are asked to determine the ri...
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Error from Harper district court....
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Error from Edwards district court....
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Error from Nemaha district court....
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This appeal is similar to that in the case of City of Seattle v. George F. Whitworth, and Ada J. Whitworth, just decided (ante, p. 126), and the decree is therefore affirmed....
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This appeal is similar to that in the ease of City of Seattle v. George F. Whitworth, and Ada J. Whitworth, just decided (ante, p. 126), and the decree is therefore affirmed....
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The questions involved in this case are identical with those in the case of Wicktorwitz v. Farmers’ Insurance Company, 31 Or. 569, and for the reasons given in the opinion in that case the judgment will be reversed and a new trial ordered. Reversed. being interested in the result, took no part in this decision....
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Plaintiff obtained an interlocutory injunction restraining defendant from seizing and selling for taxes certain sheep owned by plaintiff. Thereafter the court dissolved the injunction, and taxed the costs of the motion in that behalf at $25. The parties then submitted an agreed statement, disclosing substantially the facts shown in Bank v. Province, ante (decided by this court Jan. 17, 1898,) 51 P...
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