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All Reporters → p2d → Volume 30

Opinions in p2d Volume 30

In Banc. This is an application by respondent in a divorce suit for an order of this court requiring appellant to pay (1) suit money, ) support money pendente lite, (3) counsel fees pending the appeal. MOTION DENIED. The question involved in this motion was recently under consideration by this court in Berry v. Berry, 139 Or. 401 (2 P.2d 1110), and in La Follett v. La Follett, 138 Or. 411 (2 P.2d ...
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Action by Hazel Bodding, executrix of the estate of A. Neppach, deceased, against Ralph J. Staehli and another, to recover damages for alleged breach by defendants of a contract to purchase certain real estate. From a judgment for defendants, plaintiff appeals. AFFIRMED. Plaintiff's decedent, A. Neppach, was the owner of a parcel of land consisting of 1.85 acres on Portland Heights abutting on the...
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Action by E.R. King and another against the Amalgamated Mining Corporation to a contract to haul ore and concentrates. Judgment for plaintiffs, and defendant appeals. MODIFIED. Plaintiffs' first cause of action is based upon alleged expenditures of money and performance of services pursuant to the terms of the contract in suit. Their second cause of action is based upon a claim for damages alleged...
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Action by Mrs. A.R. Hamilton against the Corvallis General Hospital Association to recover damages for injuries sustained through bodily burns occasioned by the use of an electrical heating pad in the hospital of the defendant corporation. Judgment for plaintiff, and defendant appeals. AFFIRMED. *Page 169 The two assignments of error urged on this appeal are based on the refusal of the court to g...
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THE COURT. A hearing was granted in this case after decision by the District Court of Appeal, First Appellate District, Division Two. Upon further consideration, we are satisfied that the opinion of Mr. Justice pro tem. Dooling properly disposes of the issue, and we therefore adopt said opinion as the opinion of this court. It reads as follows: "The petitioner seeks by certiorari to have annulled ...
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This appeal involves the ownership of property not exceeding in value the sum of $150. *194 •Sam Gordon was the owner of a lot in the city of Napa upon which a one-story trade building was erected. Jack Fortney was a month-to-month tenant. During his occupancy for a period of something like a year, he covered the front area of the store with linoleum, amounting to fifty-two square yards, whic...
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THE COURT. A hearing was granted in this case, after decision by the District Court of Appeal, Second Appellate District, Division Two, in order to give full consideration to the contention of appellant Dulin that the verdict as to him was contrary to the evidence. Upon a careful examination of the whole record, we have reached the conclusion that the evidence was sufficient to sustain the verdict...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 168 Defendant appeals from a judgment of conviction carrying the extreme penalty and from orders respectively denying motions for new trial and in arrest of judgment. We have exhaustively examined the record in this case and unhesitatingly declare that the ev...
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In this action the trial court, sitting without a jury, found that the injury for which plaintiff sought to recover damages was proximately caused by her negligence and failure to exercise ordinary care for her own safety. Plaintiff struck her head with great violence against a projecting rafter of defendant's garage, which rafter she failed to observe, and thereby sustained injuries to her neck a...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 297 THE COURT. A rehearing was granted in this case to give further consideration to two points discussed in our former opinion. The first point has to do with the proper interpretation of the case of Joerger v. Mt. Shasta Power Corp., 214 Cal. 630 [7 P.2d 70...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 205 THE COURT. Plaintiff brings this action for personal injuries alleged to have been suffered by him while working for the Pacific Gas Electric Company as the proximate result of the negligence of the defendant Dean Wilson, who at the time of the accident ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 154 THE COURT. Plaintiff is a corporation organized under the laws of this state. It is the owner of the Clearing House Mine situated in Mariposa County some considerable distance from the city of Merced, where the principal place of business of the company i...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 757 From a judgment in favor of the plaintiff the defendant L.H. Cramer has appealed. In its complaint the plaintiff pleaded a written guaranty and prayed for a judgment based thereon. On the calling of the case counsel made an opening statement. That stateme...
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In an action for the principal sum of a promissory note, together with interest and attorneys' fees, findings of fact, conclusions of law and judgment were made and entered in favor of the plaintiff. The defendant having admitted execution of the note and interposed an affirmative defense thereto, motion for a new trial was made upon the ground that findings adverse to said defense were not suppor...
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[1] From the petition herein it appears that by the terms of a written instrument petitioner and one who was then her husband agreed upon a settlement or division of their community property, and in the same instrument *Page 194 provided that "it is mutually agreed that should either party hereto obtain a decree of divorce, this agreement shall be offered to the court by the party so obtaining th...
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A suit for divorce is pending between petitioner and his wife, Elsa Jeanne McGuire. The petition here is for the writ of habeas corpus and for an alternative writ of mandate, each of which was issued by this court. AVe have reached the following conclusions: AYe have no doubt as to our power to entertain a petition for habeas corpus, where married parents of a child are separated and one de...
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THE COURT. The appellant was convicted in the Superior Court of San Joaquin County of a felony, to wit: Murder of the first degree. [1] The transcript on appeal was filed in this court November 2, 1933. No brief has been filed in behalf of appellant. The cause was regularly placed on the calendar for oral argument on March 5, 1934. No appearance was made for appellant at the time the case was call...
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This action was begun by the plaintiff against the defendant Horace Kennedy and one J.K. Miller, to recover damages in the sum of $6,600 for and on account of alleged malicious prosecution. Judgment was entered against the appellant in this action for the sum of $1600 and costs. From this judgment the defendant, Kennedy, appeals. The record shows that the plaintiff, at the time of the beginning of...
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In this proceeding, the essential facts are that, following the filing in the superior court of a petition for the probate of a will, a contest of such will was filed. Thereupon a hearing of the said petition and the said contest were set for hearing on the same date; at which time, and continuing thereafter for a space of two days, evidence was received in support of "proof of the will". Thereaft...
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THE COURT. William C. McKinney, the husband of petitioner, was on March 26, 1932, in the employ of respondent Southern Pacific Company as an electrician, his duties being to inspect and repair the electrical equipment of *Page 207 locomotives in respondent's round-house. On that date, while in the round-house on his way to work and before he had reached the place therein where he customarily perf...
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Appellant was charged' by an information filed by the district attorney with the crime of receiving stolen property and with four prior convictions. *131 One L. G. Dodge, manufacturer’s representative of an eastern firm of clock manufacturers, had in his possession in June, 1933, some 400 automobile clocks. About June 19th, he discovered that approximately 100 of the clocks were missing, and ...
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The action was brought by the plaintiff to recover damages on account of injuries which resulted from a collision between an automobile driven by the plaintiff and a motor bus operated by defendant Boles, driver for the defendant corporation. At the time of the accident the two vehicles were traveling in the same direction, and the motor bus hit the right-hand side of the back part of the plainti...
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On this appeal, in substance the appellants concede that through the negligence of the defendants, and without contributory negligence on the part of plaintiff, the latter sustained certain injuries for which she was entitled to a judgment for "some damages". [1] The first point presented by the appellants as affording a sufficient reason for an order by which the judgment would be reversed, to wi...
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This is an appeal from a judgment of the district court of Fergus county. One Waldrop obtained a judgment against Mike and Susie Maser for damages on account of an automobile accident. The judgment was entered on February 29, 1932. On March 4, 1932, the Masers, in contemplation of an appeal to this court and in order to stay the execution of the judgment, furnished an undertaking on appeal in acco...
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Insufficiency of verification: Western Plumbing Co. v.Fried, 33 Mont. 7, 81 P. 394, 114 Am. St. Rep. 799;Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424,80 P. 1024; City of Arlington v. Dallas-Ft. Worth Safety Coach Co., (Tex.Civ.App.) 270 S.W. 1094; Spinks v. Mathews, 80 Tex. 373,15 S.W. 1101; Lane v. Jones, (Tex.Civ.App.)167 S.W. 177; *Page 280 Moss v. Whitson, (Tex.Civ.App.) 130 S.W. 1034; Gl...
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J.B. Grimsley was convicted, in the district court of Phillips county, of the crime of grand larceny; he has appealed from the judgment and from an order denying him a new trial. The information on which the conviction was had charges that the defendant feloniously took one red and white bull calf and one red and white heifer calf from the possession of the true owners, "Etchart and Oxarart, a par...
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This is an action in conversion to recover the reasonable value of 409 bushels and 40 pounds of wheat, alleged to have been converted by defendant, respondent here, on or about the seventh day of September, 1932. At the close of plaintiff's case the court granted an order directing judgment of nonsuit, from which this appeal is prosecuted. From the evidence introduced by plaintiff, appellant here,...
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Plaintiffs, as county commissioners of Madison county, brought this action against the defendants, as owner and mortgagee, respectively, of certain lands and premises, seeking to have a certain road across them declared to be a public highway, and to have the obstruction of the same by defendant Bara enjoined. Plaintiffs in their complaint alleged their official capacity, the existence of Madison ...
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The opinion of the court was delivered by. The appeal in this case is by the principal from an award by the commissioner confirmed by the district court under the workmen’s compensation law, and the main question involved is whether the act permits a recovery of compensation from the principal by an employee of the contractor after such employee has proceeded only against the contractor and obtai...
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The opinion of the court was delivered by This is an action to recover money. Judgment was for plaintiff. Defendant appeals. *2The suit was filed against C. H. Howland and Charles Howland, partners, doing business as the Commodore Pool Hall. The petition alleged in the first place that they were partners. At the time of trial the court permitted an amendment by adding the words “or Charles Howlan...
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The opinion of the court was delivered by This is an action to recover damages on account of the alleged defective condition of a state highway. Judgment was for plaintiff. Defendant appeals. The highway at the point where the injury occurred was constructed of concrete. In his petition plaintiff alleged that his car struck “a depression or low place in said highway.” He alleged further that “beca...
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The opinion of the court was delivered by This was an action for injunction to prevent a sheriff’s sale, and the appeal is from an order sustaining a demurrer *113to plaintiff’s evidence and setting aside a temporary injunction which had been issued. The facts out of which the action arose, and as shown by the evidence, are as follows: On December 3, 1920, Frank Blanchat owned a certain tract of l...
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(concurring specially): I concur in the judgment of affirmance. The principal question to be^ determined by this appeal is whether contributory negligence is a defense in an action for personal injuries to a guest in a motor vehicle under the Nebraska statute limiting the liability of the owner or operator of such vehicle to that arising from his gross negligence. Prior to the passage of the statu...
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The opinion of the court was delivered by The action was one by a mechanics’ lien claimant to foreclose its liens. Various other mechanics’ lien claimants and the owner of the real estate were made parties defendant. The Wichita Loan and Trust Company, a mortgagee, was made a party defendant. The mechanics’ liens were held to be superior to the lien of the loan and trust company’s mortgage, and i...
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The opinion of the court was delivered by This is an action to recover real and personal property owned by Ellen King Schneck at the time of her death intestate, February 5, 1931. Plaintiffs are a half-sister and nieces and nephews of deceased, who inherit the property if deceased left no surviving husband. (It is stipulated she left no children.) Defendant claims the property as the surviving hus...
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The opinion of the court was delivered by Plaintiff brought this action to compel defendant to enter his name as a stockholder in its stock record, to transfer and issue to him eight shares of stock to which he laid claim by assignment and purchase, and to account for certain accrued but unpaid dividends pertaining thereto. The controlling facts were these: In 1915 the defendant corporation was o...
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The opinion of the court was delivered by This was an action f-or a divorce. The plaintiff appeals, claiming the trial court committed error in the allowance of alimony. There was evidence to the following effect: Prior to the marriage defendant had a Star automobile. He traded it for a used Durant automobile. In the trade the old car was valued at $400, and plaintiff, from her own means, paid $72...
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The opinion of the court was delivered by These three cases, which were consolidated and tried together in the district court, grew out of the leasing of some Stafford county lands for gas and oil development and out of the lessee’s neglect to cancel those leases of record upon his failure to develop or pay rent. It appears that on and prior to April 6, 1926, William M. McMillan and wife were the ...
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The opinion of the court was delivered by This was an action for damages on account of the death of a child following a surgical operation. The petition alleged two causes of action against C. R. Townsend, *83Jr., hereafter referred to as the defendant, and one W. E. Hartsock, on whom no service of process was had, which are summarized as follows: The first cause of action charged that plaintiffs...
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The opinion of the court was delivered by This was an action to quiet the title to a small tract of land bought for a highway. It was brought by Alta township in Harvey county, as owner, and by J. E. Regier, as an oil and gas lessee, of a small strip of land 49% feet wide by 778% feet in length. The strip in question was a part of a quarter section of land purchased by Abraham P. Froese, in 1890,...
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The opinion of the court was delivered by This litigation grew out of a project of the building of Quivira by the Quivira Development Company, a syndicate of men who engaged in the purchase of land in Wyandotte and Johnson counties, in the neighborhood of Kansas City. They purchased contiguous tracts, amounting to about nine hundred acres, on which dams and lakes were made, roads were built, wate...
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The opinion of the court was delivered by A motion for a rehearing has been filed by the appellant in this case, in which it is suggested that the court overlooked “the particular statutes in controversy and which appellant cited, as sustaining his contention.” .The abstract, briefs and opinion of affirmance in this case have been studiously reconsidered in the light of appellant’s pending motion,...
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This case brings a judgment of the District Court of Weston County for review by direct appeal. The facts material to be considered, and in connection with which the present litigation arose appear to be these: The State of Wyoming, through its Board of Land Commissioners, on August 2, 1927, granted to one Clinton W. Smith, a "Lease of State Land" on Section 16, Township 46 North, Range 64 West, i...
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A.E. Wilde, State Examiner, in charge of the First State Bank of Douglas, brought three actions, namely one against C.D. Zimmerman to recover on a note of seven thousand dollars, another against the Douglas Securities Company to recover on a note of ten thousand dollars, and another against the Douglas Reservoir Company to recover on a note of ten thousand dollars, the various notes being dated Ja...
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The Doss Oil Royalty Company, the plaintiff in error herein, commenced an action in the district court of Pottawatomie county, Okla., against the Federal National Bank and others for the recovery of damages for breach of contract. The trial court’ sustained the demurrer of the Federal National Bank to the evidence of the plaintiff. The plaintiff appealed to this court. The only question before th...
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Petitioner herein filed this original proceeding August 31, 1931, to review an award of the State Industrial Commission made on the 10th day of August, 1931, finding that claimant Mary Owrey was in the employ of the petitioner Harbour-Longmire Company and while in said employ sustained an accidental personal injury arising out of and in the course of her employment. On the 19th day of August, 1932...
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This was an action for divorce, custody of the minor child of the parties, and for support and alimony. At the conclusion of the trial, a decree *Page 421 was made granting the plaintiff a divorce and awarding the custody of the minor daughter of the parties to her during the school months of the year, and to the defendant during the vacation period, with the right of visitation to each. The part...
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The petition in error and case-made in this action were filed June 15, 1931, and thereafter a motion to dismiss the appeal was filed for the reason that the plaintiff in error had not complied with an order entered March 14; 1933, permitting the withdrawal of the ease-made for correction in order to meet the defect pointed out in the motion to dismiss. A response to that motion to withdraw the ...
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This is an original action to review an order of the State Industrial Commission, wherein a motion to discontinue claimant's compensation was overruled, and it was found by the Commission that claimant was still temporarily totally disabled and ordered compensation continued. Schoenfield Hunter Drilling Company, as employer, and United States Fidelity Guaranty Company, a corporation, are petitio...
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This original proceeding was begun by the petitioner, M.H. Silverman, by the filing of his petition August 20, 1931, to review an award made by the State Industrial Commission to Fred C. McMartin in cause No. 22688, Aetna Life Ins. Co. v. McMartin, 158 Okla. 107, 12 P.2d 226. On the 3rd day of October, 1932, M.H. Silverman filed a denominated confession of error in which it is stipulated and agree...
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This is an appeal from a judgment of the district court of Caddo county in favor of the plaintiff therein, the defendant in error in this court, against the defendant therein, the plaintiff in error in this court. The plaintiff alleged the existence of an oral contract between the plaintiff and the defendant by which the plaintiff was to perform work and labor and furnish certain material necessar...
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This is an appeal from a judgment in an action of unlawful detainer. John B. Stites was the owner of the premises in controversy. He leased them for the year 1929 to Carl Meeker. The lease contract was in writing. Meeker assigned to plaintiff in error, who farmed the land fpr that year. After the expiration of the lease, Buchanan claimed to have an oral agreement for a lease for the year 1930. ...
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This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendant in error, who was the plaintiff therein, and against the plaintiff in error, who was the defendant therein. Under the issues, the burden of proof was on the defendant. At the conclusion of the evidence offered by the defendant, the plaintiff demurred thereto and moved for a directed verdict, and, o...
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H.N. Hart, plaintiff below, appeals from a judgment of the district court of Okmulgee county, Okla., denying him a mortgage lien upon the property of Ada M. Roach, nee Tiger, and Frank Roach, wife and husband, defendants below. Other parties are involved in this action, but the appeal involves primarily a question between the parties above named, and the other parties need not be mentioned specifi...
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The only issue presented on appeal in this cause which was presented in the trial court, which granted an injunction, was determined by this court in cause numbered 21722, C. C. Julian Oil Royalties Co. v. Oklahoma City, this day decided, *Page 458 167 Okla. 384, 29 P.2d 952. The rule therein stated is applied herein. Therein we applied the rule stated by this court in Gant et al. v. Oklahoma Cit...
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This action was begun in the district court of Pittsburg county on the 19th day of September, 1932, and after a final judgment by the court below a motion for new trial was filed and duly overruled on the 11th day of February, 1933. The appeal was not filed in this court until the 19th day of August, 1933, which is more than six months subsequent to the date of the order overruling motion for new ...
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This is an appeal from a judgment of the Court of Tax Review denying the protest of the Chicago, Rock Island Pacific Railway Company against certain tax levies for the fiscal year commencing July 1, 1932, and ending June 30, 1933, made by the excise board of Garfield county. The protestant appealed to this court from the judgment as to two items, which will be considered separately. The first ite...
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This is an appeal by Hanson *Page 429 Pearce, Inc., and the Metropolitan Casualty Company from a judgment of the district court of Payne county in two cases consolidated in the district court wherein the Producers National Bank, Tulsa, Okla., recovered judgment against the above-named defendants for certain materials furnished to Hanson Pearce for the construction of certain paving in the city o...
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R.M. Messick, hereinafter referred to as plaintiff, brought suit in the district court of Carter county, Okla., *Page 464 against Roy M. Johnson, hereinafter referred to as defendant, for the sum of $4,536.92, with interest. Plaintiff's cause of action was based on a contract and supplemental agreement hereinafter set forth: "Agreement – Ardmore, Okla., Nov. 17, 1926. I Roy M. Johnson, of Ardmore...
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George Dadas, as plaintiff, brought suit in replevin against Mike Mitchell, as defendant, to recover possession of a mechanical piano then in defendant's restaurant at Ada, Okla. Following plaintiff's affidavit and bond, defendant made a redelivery bond and retained possession of the piano. The cause was tried to a jury and a verdict was rendered for plaintiff for possession and for $50 damages. T...
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This is an original action in this court to review an award of the Industrial Commission entered in favor of M.D. Anderson, claimant, against C. S. Constant Company and the Travelers Insurance Company, respondents. It appears that on or about September 10, 1932, claimant was in the employ of respondent C. S. Constant Company as a day laborer, and while engaged in the building of bridges or culve...
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This is an original action wherein petitioners, Royal Mining Company (United Zinc Smelting Company) and United States Fidelity Guaranty Company, seek to review an order and award of the State Industrial Commission whereby one F.J. Murray was awarded compensation for injuries alleged to have been sustained while in the employ of the Royal Mining company. The claimant, F.J. Murray, and the State In...
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This is an action commenced by defendants in error against Kanola Corporation and the Pure Oil Company, plaintiffs in error, to recover damages alleged to have been caused by the pollution of the stock water supply in a large pasture containing some four sections of land of which plaintiffs were the lessees, except as to 160 acres thereof which they owned in fee. The action was against defendants ...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on her plea of guilty of maintaining a place where intoxicating liquors were kept for sale, and was sentenced to pay a fine of $50 and to serve 30 days in jail. The complaint made is that the trial court abused its discretion in denying defendant's application to withdraw plea of guilty and to enter...
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The plaintiff in error, hereinafter for convenience referred to as defendant, was by information charged with murder, was tried and convicted of manslaughter in the first degree and sentenced to imprisonment in the state penitentiary for four years, and appeals. The testimony in substance is that Buster Neeld, a brother of the defendant, and Cecil Davidson met in the town of Comanche on the 7th da...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county of wife and child abandonment, and his punishment fixed at imprisonment for a term of two years. The prosecution is under section 1830, Okla. Stat. 1931, which is: "Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to main...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of a second and subsequent offense of a violation of the prohibition laws, and sentenced to pay a fine of $300 and imprisonment in the state penitentiary for a year and one day, and appeals. The testimony in this case shows that defendant was intoxicated on the streets of Cushing, Payne county, Okla., in front of the C...
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The commissioners of Washington County in September, 1931, pursuant to chapter 232, Session Laws 1927, amended by chapter 138, Session Laws 1929, which act and amendment was repealed by chapter 122, of the Session Laws for 1931, determined the budget for 1931, which included a levy for the current expense fund of 40 cents on each $100 of assessed valuation, the maximum amount permitted by sec. 61-...
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In 1927 Ray Shearer and A.A. Davis were, and still are, commissioners of respondent Highway District. And in 1927, and up until the first day of January, 1930, John H. Blass was a commissioner of said district. On the first day of January, 1930, J.G. Winkle *Page 203 succeeded Blass as a member of the Board of Commissioners of the district. And from May, 1925, up until April 1928, F.C. Graves was...
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From a verdict of conviction and sentence for the crime of grand larceny defendant appeals. The district attorney filed an information charging defendant and another as follows: "That the said Orlando Jensen and Hans Jensen, on or about the 8th day of August, A.D. 1932, at and within the County of Sevier, State of Utah, did willfully, unlawfully and feloniously, steal, take, lead, carry and drive ...
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This is an original proceeding by Wiley M. Cragun, herein referred to as plaintiff, unless otherwise indicated, for a writ of prohibition to prevent the district court of the Second judicial district of the state of Utah in and for Weber county from dismissing an appeal taken from a decision or order of the department of registration of the state of Utah. The court has indicated by order duly ente...
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This action was brought to recover upon a joint promissory note. It is alleged, and the record discloses, that on or about the 26th day of July, 1931, John H. Gurr and Gwen M. Gurr, his wife, executed and delivered to the Parowan Mercantile Company their joint promissory note. That thereafter, *Page 465 after, on or about April 30, 1932, John H. Gurr died intestate. That the note had matured befo...
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Hadlock, the state bank commissioner, in pursuance of the Banking Act, Laws of Utah 1921, c. 23, as amended by Laws of Utah 1923, c. 33, took possession of the business and property of the State Bank of Millard County at Fillmore and proceeded to liquidate it. He, for the period from February 1 to March 15, 1932, filed a report in the district court in and for Millard county, showing an itemized s...
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This case in most respects is similar to the case of Hadlock v. State Bank of Millard County (Utah) 30 P.2d 211, just decided. It likewise is a case wherein the Commissioner filed a partial report to be approved by the court in respect of compensations and salaries of examiners, assistants, stenographers, etc., and expenses incurred in liquidation of the State Bank of Beaver County and where on he...
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This action was brought in the Third judicial district court, county of Salt Lake, to recover damages alleged to have been suffered by the plaintiff as the result of a bite inflicted upon her foot and leg by defendant's bulldog. The cause was transferred to Juab county in the Fifth judicial district upon motion for a change of venue made by defendant. Upon the merits there is but a single question...
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Section 1653 N.C.L. provides that the district court may limit the time within which creditors shall present *Page 258 and make proof to the receiver or trustee of their respective claims against the corporation, and may also prescribe whether notice shall be given to creditors by publication or otherwise of such limitation of time. And by sec. 1654 N.C.L. it is provided that every claim against ...
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Appellant sued to recover damages suffered in an automobile collision at a street intersection. *Page 470 The defense consisted of a general denial and affirmative allegations of contributory negligence. The answer also contained a cross-complaint for damages alleged to have been caused by the sole negligence of the plaintiff. The allegations of the cross-complaint were denied by a reply. Trial w...
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Plaintiff instituted suit, under nine separate causes of action, to recover usury paid by him to defendant on nine promissory notes. The court found that the payments made by plaintiff on the first seven notes were usurious to the extent of $1,065.90 and on the last two notes to the extent of $160.15. The court held, however, that the first seven causes of action of the complaint were barred by th...
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The relator, Arthur Cavitt, made application to this court for a writ of mandate to compel the respondent, judge of the superior court for Clark county, to forthwith sign a final decree in a divorce action pending in that court. An alternative writ having first been issued, the matter is now before us for determination upon the argument of counsel and the record as here presented. The facts, which...
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The relator, as plaintiff, brought an action to foreclose a real estate mortgage. In the complaint, it asked for injunctive relief and, in the alternative, for the receiver to collect the rent from the property covered by the mortgage during the foreclosure. The relator supported the application for injunctive relief by an affidavit, and a temporary restraining order was issued, accompanied by a s...
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This action presents another chapter in the history of the problem of transportation between Seattle and Bainbridge Island. *Page 487 For many years prior to the enactment of chapter 248, Laws of 1927, p. 382 (Rem. Rev. Stat., §§ 10361-1, 10361-2), the plaintiff had operated steamboats affording regular vehicular, passenger and freight service between Seattle and points on the island. Pursuant to...
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During the pendency in the superior court for King county of a divorce action by Helen DaPonte Lang against J. Maynard Lang, Jr., in 1932, the parties entered into a written agreement designated "Property Settlement," reading, in part, as follows: "That, whereas there is now pending in the above entitled court and cause an action for divorce between said parties; and "WHEREAS said parties desire t...
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MITCHELL, MAIN, and STEINERT, JJ., dissent. Respondent, a workman engaged in extrahazardous employment, made a report of accidental injuries said to have been suffered on December 9, 1931. The report, dated December 31, 1931, was signed by the claimant at the Western State Hospital for the insane and so shows on its face. An investigation was made by the department, and the report made by the inve...
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For some time prior to November 4, 1932, plaintiff was in the employ of the defendant Braley Motor Company, Inc., located at Aberdeen. On that day, H.C. Braley, manager of the motor company, and plaintiff drove to Seattle in a 1927 or 1928 Chrysler coupe which the motor company had *Page 578 acquired just a few days before. The purpose of the trip was to take delivery of a Dodge truck for the mot...
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This is an original proceeding in mandamus to compel the state auditor to audit and allow petitioner's claim for professional services and expenses incident thereto rendered the Colorado River commission from August 14 to October 29, 1933, and to draw a warrant on the state treasurer therefor. The respondent refused to allow and pay the claim for professional services upon the ground that the peti...
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THE parties appear here in the same order as at the trial, and the parties around whom this controversy centers will be referred to as the mortgagee and the constable. The mortgagee filed suit against the constable and his surety, the bonding company, praying for damages. The facts were stipulated and trial had to the court. To review an adverse judgment, the mortgagee brings error. "It is hereby ...
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THIS is a proceeding brought under the Workmen's Compensation Act. J. B. Lard, referred to herein as the decedent, was in the employ of A. L. Cook and Sanders Brothers. On August 4, 1931, he was killed in an accident arising out of and in the course of his employment. His widow, in her own behalf and in behalf of the claimants J. W., Lavina and Mima Lard, filed with the Industrial Commission a dep...
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HORTON, as treasurer of El Paso county, brought an action in accounting against McFerson, as state bank commissioner, who is in possession of the assets of the State Savings Bank of Colorado Springs to liquidate its affairs. The court found the issues for McFerson and rendered judgment accordingly. Horton brings error. We refer hereinafter to Horton as the treasurer, to McFerson as the commissione...
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PLAINTIFF in error was one of two defendants in the trial court. For convenience, the defendant in error will be referred to as plaintiff, and the plaintiff in error as defendant. Upon her complaint filed in the district court of Larimer county, Colorado, on the 24th of August, 1931, the plaintiff recovered a joint judgment against both defendants in the sum of $5,000, on a jury verdict. To revers...
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BERTHA Jacobstein, Administratrix of the estate of Nathan H. Jacobstein, deceased, recovered judgment against Mystic Tailoring Company, a corporation, in the sum of $150, for services rendered the company by deceased during his lifetime. The company assigns error and asks for a supersedeas. The administratrix assigns cross-error and prays that the judgment be increased to the sum of $300. It was p...
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delivered the opinion of the court. The plaintiff in error was defendant in the trial court and will be referred to as the tenant, and defendant iu error as the landlord. The landlord brought this suit to recover $6,400, being the balance of rent claimed by it for the year 1930, under a written lease dated July 31, 1926. The leased premises were a portion of an old building known as 1645-49 C...
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WHILE there were no pleadings in the trial court, the defendant in error appeared in the role of plaintiff and we will so refer to her in this opinion, and to plaintiff in error as the board. The proceedings in this case were had under section 8702 and 8703 of the Complied Laws of 1921, which are as follows: Section 8702. "When any claim of any person against a county shall be disallowed, in whole...
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delivered the opinion of the court. The defendants in error were plaintiffs in the trial court where they sought to set aside an award of the Industrial Commission of the state of Colorado, and will be referred to herein as the fuel company and the insurance company. The plaintiffs in error will be referred to as the claimant and the commission. To review an adverse judgment, the claimant and t...
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Strange as it may seem, although neighbors and adjoining landowners are the parties whose property is alleged to be affected, this action is not between the neighboring landowners. Wolfensperger owns a lot adjoining plaintiff's lot and immediately west thereof. He built a small dwelling house on his lot. The plaintiff owns a larger lot on the east, upon which is a larger residence. Plaintiff bring...
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Hattie Jones was injured in an automobile collision resulting in her death. The car in which she was riding, being driven by her son, collided with a car in which defendants Burette Gray and A.J. Cloud were riding. Which of the defendants was driving this car is in dispute. The defendant Cloud testified that the defendant Gray was driving. All the other witnesses for the state testified that defen...
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OPINION A petition for a rehearing has been filed, in which it is urged that the plaintiff not having pleaded an abandonment of the express contract found by the trial court to have been entered into between the plaintiff and the defendant, the findings, judgment, and decree were ill-advised, and without justification. 1. This point was not made in the trial court ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 265 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 266 Is there anything in any or all of the fourteen exemptions named in the act which take them out of the declare...
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*198The opinion of the court was delivered by This is an appeal from a judgment of the district court denying an injunction asked by the state to restrain the members of the forestry, fish and game commission from the exercise of powers conferred on it by chapter 107 of the Special Session Laws of 1933, the basis of the state’s action being that this statute was unconstitutional and invalid in se...
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The opinion of the court was delivered by Defendant, who was cashier and also director of the State Bank of Elsmore, was convicted on two counts of an informa-' tion charging him with accepting deposits when the bank was insolvent and when he knew it to be insolvent. Defendant appeals. Defendant was prosecuted under R. S. 9-119, which provides that no bank shall accept or receive on deposit any mo...
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The opinion of the court was delivered by Davidson Brothers were automobile dealers in Kansas City. In 1929 the defendant, E. T. McAbee, purchased a Hudson automobile from them for the sum of $1,375. McAbee was given an allowance of a small sum for an old car which was traded in, paid a small amount in cash and there remained a balance due Davidson Brothers of $1,258. McAbee asked for a credit *11...
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*76The opinion of the court was delivered by This action brought by Frontier Lodge No. 104, Ancient Free and Accepted Masons of Washington, Kansas, a corporation, against the heirs at law of Barton S. Wilson, to establish and enforce specific performance of a contract said to have been made between Barton S. Wilson and his wife, Lydia Wilson, to leave by their wills their property to the plaintiff...
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The opinion of the court was delivered by This was an action to recover a claimed statutory double liability of a stockholder in an insolvent trust company organized under chapter 407 of the Laws of 1901, as amended, and now appearing as R. S., ch. 17, art. 20, as amended. The second amended petition alleges the incorporation of the International Mortgage Trust Company on March 24, 1925, its char...
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CONROD Lesser sued William Tecumseh Porter and Helen Porter for damages for inducing him by false representations to enter into a contract for the purchase of a farm. At the close of plaintiff's evidence the court granted a nonsuit and dismissed the case. There are two false representations alleged in the complaint; namely, that the farm contained 90 acres, and that it was worth $24,000. The trial...
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ACTION at law on Defendants, plaintiffs in error, having elected to stand on their overruled general demurrer to the complaint, plaintiff, defendant in error, was given judgment in the sum of $342,561.29, and costs. Error is assigned. Whether the court erred depends on the construction of two instruments, one, set forth in the complaint, entitled a "Certificate of Indebtedness issued by the Distri...
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THE Fidelity and Casualty Company of New York, a corporation, surety on the bond of George W. Beck, receiver of the Colorado Pulp and Paper Company, a corporation, prosecutes error to review a judgment in the sum of $2,500 and interest. The action was brought and judgment obtained against the surety in the name of the people for the use of Milton D. Green, who was appointed by the district court a...
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IN a will contest judgment went against the contestants. They seek a reversal of the judgment. On November 13, 1929, Joe Aquilini, a resident of Pueblo, made a will in which Clifton Chamblin, the defendant in error, was named as sole legatee and executor. On December 12, 1929, the testator died, possessed of a sum of money. Chamblin presented the will to the Pueblo county court for probate, his pe...
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delivered the opinion of the court. This is a proceeding under the Workmen’s Compensa *383 tion Act of Colorado. The employer and its insurer join in asking us to reverse the judgment of the Denver district court, which affirmed an award of compensation by the Industrial Commission. We are also asked to reinstate the decision of the commission’s referee, whereby the claim for compensation was...
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Separate suits in equity by Mandius Julian Olsen, a minor, by his guardian, Henry Bauer, and by Serene M.M. Olsen, an incompetent, by her guardian, Henry Bauer, which suits were consolidated, against E.M. Rasmussen and others. From a decree, named defendant appeals. AFFIRMED. REHEARING DENIED. The plaintiffs, a brother and a sister, by their present guardian separately brought a suit in equity to ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 261 In Banc. Suit by Clara L. Broughton and another against C.E. Stricklin, State Engineer, the Cline Falls Finance Company, the Central Oregon Irrigation District, and others. From the decree, plaintiffs appeal, opposed by the last two named defendants. REVE...
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Action by E.J. Lammers against G. Spencer Hinsdale. From a judgment for plaintiff, defendant appeals. AFFIRMED. This action was instituted by plaintiff on his own and two assigned claims for salaries due plaintiff and two of his associates for services alleged to have been rendered to Charles Snell, M.B. Griffin and the defendant, G. Spencer Hinsdale, and agreed to be paid for by the defendant. Fr...
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In Banc. Suit by the Dairy Co-operative Association, a cooperative association, against the Brandes Creamery, a corporation, and another, to enjoin defendant from violating terms of a contract between plaintiff and named defendant and from attempting to induce third parties having similar contracts with plaintiff to violate the terms thereof. From a decree dismissing the complaint and canceling th...
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Action by Earl Morrison against the Pacific Northwest Public Service Company. Judgment for plaintiff, and defendant appeals. REVERSED. This action was brought by the plaintiff to recover damages from the defendant for injuries suffered by plaintiff, a passenger on defendant's street car, while alighting therefrom, caused by plaintiff's slipping on some foreign substance on the floor of the front v...
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This case was consolidated for trial in the circuit court with the case of Fairy Cooperative Association v. Brandes Creamery and Brandes Creamery, Inc., decided contemporaneously herewith and remanded with directions. The two cases were argued together upon appeal. The circuit court entered a decree cancelling the contract in suit and awarding a judgment against defendant in the sum of $501.0...
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Action by N.G. Mickel against the Associated Oil Company. From a judgment for plaintiff, defendant appeals. AFFIRMED. REHEARING DENIED. *Page 82 This is an action to recover rental. The plaintiff alleges that on or about June 1, 1929, he entered into a written lease with the defendant oil company whereby the latter agreed to lease a certain gasoline filling station at Mt. Angel, Oregon, for a ter...
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In Banc. Action by the First National Bank of Portland against Edmond J. Labbe and others, individually and as copartners doing business under the firm name and style of Labbe Bros., to recover on two promissory notes and to foreclose plaintiff's lien on certain stocks and bonds pledged as collateral security for the payment of such notes. From a decree for plaintiff, defendants Emma Labbe and Pau...
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Action by Ben Hasbrook against James R. Lynch, doing business as Lynch Bros. From the judgment, plaintiff appeals. MODIFIED. The complaint avers the plaintiff's ownership of a parcel of real property therein described, consisting of a city lot and a dwelling house standing upon it, and that on February 6, 1932, the defendant wrongfully entered the house, removing from its basement a furnace of the...
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September 9, 1932, this court rendered its opinion [52 Idaho 286,15 P.2d 604] reversing the judgment of the trial court holding valid an alleged will of the decedent Brown theretofore refused probate by the probate court, on a contest by appellant as devisee under a prior alleged will. Respondent, Lee L. French, was named executor under the contested will, Mrs. French being a devisee. The appeal f...
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On November 3, 1931, appellant, driving his automobile on a rural highway about two miles south and west of the city of Ontario, and within the state of Oregon, struck respondent who was walking across said highway. Thereafter respondent brought this action for damages because of personal injuries alleged to have been sustained, alleging, among other things, that appellant was driving at a terrifi...
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This appeal is taken from an order of the district court denying appellants' motion for new trial. Respondents, in their brief, raise the question of the failure of appellants to file their notice of, or motion for new trial within the ten-day period provided by sec. 7-604, I. C. A., which, in part, reads as follows: "The party intending to move for a new trial must, within ten days after the verd...
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Curtis Elliott, a pedestrian, was injured by an automobile driven by defendants at or near a street intersection in Sedro Woolley. The automobile, being driven south, ran over the plaintiff at a point appreciably off the west edge of the pavement. He brought this action for damages, which resulted in a verdict and judgment in his favor. The defendants have appealed. [1] The first assignment is tha...
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In the information in this case there are named sixteen defendants. The information contains three counts. In the first, the defendants were charged with the crime of riot; in the second, with interfering with a public officer; and in the third, with assault in the second degree. Eleven of the defendants, who were convicted, appeal from the judgment and sentence imposed. No statement of facts has ...
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BLAKE, J., dissents. The Attorney General instituted this action to recover certain moneys which came into the hands of the defendant Jay Thomas as public printer, *Page 545 which moneys were on deposit with the defendant bank. A judgment was prayed for against Thomas and the community for the amount of these funds, and a lien thereon binding upon the defendant bank was demanded. From a judgment ...
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In the complaint in this case, there are two causes of action, separately stated, each of which is based upon a promissory note. The maker of the notes admitted liability, paid the amount thereof into the registry of the court, and asked that other parties who were rival claimants to the proceeds be made parties to the action. An order was entered adding as additional defendants Gustave Weissbaum,...
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Respondent, a corporation organized for religious purposes, brought this action to enjoin the collection of taxes levied upon real estate owned by it in the city of Seattle, King county. A trial on the merits resulted in findings of fact favorable to the plaintiff, and a decree adjudging the taxes to be illegal, null and void, and enjoining the defendants, as public officers, from collecting, or a...
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This action was brought by the Firestone Tire Rubber Company against Leo Bordeaux to recover $390, a balance alleged to be due plaintiff on account of automobile tires sold and delivered to defendant. The defendant denied any indebtedness except the sum of $6.51, which was duly tendered to *Page 593 plaintiff before the institution of the action. The cause was tried to the court without a jury, ...
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Upon arraignment, defendant entered a plea of guilty of the crime of manslaughter. Before the plea was entered, however, he was fully informed of his right to representation by counsel, and waived it. Sentence was deferred for three days. At the appointed time, defendant appeared with counsel and interposed two motions: One for change of venue under Rem. Rev. Stat., §§ 209-1 and 209-2; the other f...
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The defendants herein, Z.R. Sistrunk and his wife, Cora Sistrunk, have appealed from a judgment decreeing that the agreement, whereby the plaintiff had agreed to sell to the defendants the lands described in the complaint, be canceled; that plaintiff be restored to the full possession thereof and the defendants be ejected and enjoined from asserting or claiming any right, title or interest therein...
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THE COURT. Appeal from a judgment in an action for ejectment after attempted cancellation of an installment contract *Page 780 for the purchase of realty. [1] The record in this case, except for the amounts of the purchase price, the payments made and damages claimed, is practically identical with the record inNevada Land Investment Corporation v. Sistrunk, Sac. No. 4809 (ante, p. 174 [30 P.2d 3...
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This is an action by the father of a minor to recover for the wrongful death of said minor. The deceased, a child nine years of age, was a guest in an automobile driven by defendant, his uncle. The accident occurred on May 17, 1931. At that time section 141 3/4 of the California Vehicle Act provided that an action based upon injuries or death of a guest in a motor vehicle could be maintained upon ...
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THE COURT. Defendants Gouverneur Morris and Ruth J. Wightman Morris, his wife, appeal from a judgment decreeing foreclosure of mechanics' and materialmen's lien on property in the city of Monterey, this state, record title to which stands in the name of Mrs. Morris. By said judgment the court decreed that defendants were indebted to plaintiffs S.H. Hooke and W.E. Hooke, building contractors, in th...
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Plaintiff appeals from an interlocutory decree of divorce, from an order denying her counsel fees and costs on appeal and support money pending appeal, and from an order denying her motion for a new trial. [1] The latter order is nonappealable and the purported appeal therefrom must therefore be dismissed. The remaining two appeals will be considered presently. The action was instituted by appella...
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THE COURT. Plaintiffs bring this action on behalf of Eureka Fishermen's Union, an unincorporated association of commercial fishermen comprising about 150 members, against respondents as members and deputies of the California Fish and Game Commission, to restrain them from enforcing the provisions of Penal Code section 634, as amended in 1931. The lower court gave judgment for defendant. The facts ...
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J.E. Oliver, the surviving husband of Harriet A. Oliver, deceased, brought this action to partition *Page 329 certain real property in San Joaquin County owned in part by the deceased wife in her lifetime. An interlocutory decree was entered which determined the right of the respective parties and ordered partition as follows: One-fourth interest to J.E. Oliver; one-fourth interest to Charles Elm...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 238 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 239 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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THE COURT. We hereby adopt the following portions of our former opinion as a statement of the facts and issues presented in this case: "This appeal is from a judgment in favor of plaintiffs declaring that a contract employing the defendant Edwin P. Stoll was terminated by the incompetency of his father and employer, John T. Stoll, and restraining the defendant Edwin P. Stoll from interfering with ...
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THE COURT. This is a proceeding to review an order of the respondent commission denying compensation to the petitioner. In January, 1932, the petitioner applied to the bureau of county welfare of the county of Los Angeles for assistance. After due investigation he was found to be a resident of the county and entitled to the relief sought. His requirements were fixed at $41.60 per month. From that ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 316 The county of San Mateo, acting under the authority of section 7 1/2 of article XI of the Constitution of this state, framed a charter for its own government, which was approved by the legislature at its session in 1933. By this charter the office of coun...
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THE COURT. This is an action to enjoin an execution sale. H.M. Kurtz made a promissory note to plaintiffs and appellants for $1700, and to secure payment executed on May 18, 1932, a chattel mortgage on certain automobiles, among them the Buick sedan involved in this action. The mortgage was recorded in Yolo County, where the property was situated, on May 27, 1932. On May 28, 1932, a certified copy...
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Plaintiffs filed a complaint entitled "Complaint for Money on Contract". It contained two counts. On a trial by the court sitting without a jury defendants' motion for nonsuit as to the first count was granted. Judgment was entered in favor of the defendants on the first count and in favor of plaintiffs on the second count. Defendants appeal from that portion of the judgment relating to the second...
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The defendant was tried before a jury on an information charging rape with force and violence. The jury found a verdict of guilty as charged and from the judgment and the order denying a new trial the defendant has appealed on a typewritten record. The prosecutrix was an unmarried female over the age of consent. She was born in Mexico, but had resided in the United States about six years. The defe...
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The effective part of an order issued out of the United States District Court, Southern District, California, Central Division, is as follows: “It is ordered that said Petition to show cause be, and the same is hereby, made absolute, that the said A. N. Kemp, Receiver for the Guaranty Building and Loan Association of Los Angeles, a corporation respondent above, is ordered, during the pendency o...
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In this action, plaintiff claims damages of defendants for personal injuries suffered by her as a result of a collision between the automobile of defendant J.E. White and that of defendant H. Bahr. A jury returned its verdict against plaintiff, and in favor of both defendants, and judgment on the verdict was entered accordingly. Plaintiff moved for a new trial on all the statutory grounds except, ...
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The petitioner Kelshaw, treasurer of the county of San Luis Obispo, applied to the Supreme Court for a writ of prohibition, to prevent further action in a contempt proceeding now pending in respondent court. An alternative writ issued, and the cause was transferred to this court. Although there is an answer on file the facts are not in dispute, and the questions at issue are those raised by demurr...
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Defendant and one Walter Blankenship were jointly charged in an information filed by the district attorney of Los Angeles County with the crime of grand theft. On the trial of defendant Land the jury returned a verdict of guilty. From the judgment of conviction entered upon said verdict and from the order denying his motion for a new trial, defendant Land has appealed. Appellant urges (1) that the...
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This action was for damages for injuries resulting from the collision of two motor vehicles operated by plaintiff and defendant. It was tried by the court with the aid of a jury and a verdict was rendered for defendant. Plaintiff moved for a new trial, which was denied, and judgment was thereupon rendered for defendant. From this judgment plaintiff has appealed. The sole question to be determined ...
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This is an appeal taken by the defendant from a judgment rendered by the trial court in conformity with the verdicts of a jury returned in a criminal action. Upon the rendition of judgment appellant gave oral notice of appeal from the judgment and from the order denying his motion for a new trial. He also filed a typewritten statement of the grounds of appeal, which included a prayer that the tri...
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By an information filed by the district attorney of Fresno County appellant was charged with engaging in a riot near the city of Fresno in Fresno County on September 9, 1933. This appeal is taken from the judgment of conviction and from the order denying his motion for new trial. While appellant's brief in many respects fails to conform to the rules of court, in view of the nature of the charge of...
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This is an action to foreclose a mechanics' lien. Judgment went for the lien claimant's successor in interest. The defendants Bay City Building and Loan Association, Fidelity and Guaranty Loan Company and Southern Investment Company, all three corporations, have appealed from the judgment. The record has been brought up under the alternative method. It is claimed by the appellants that the trial c...
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On the thirteenth day of September, 1933, the petitioner was convicted and sentenced to six months’ imprisonment, in the Justice’s Court of the City of Sacramento, in the County of Sacramento, for an alleged violation of section 270 of the Penal Code, relative to providing for one’s minor children. The argument in this case has taken a wide field, and in the discussion, the second paragraph of se...
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This is a proceeding in certiorari to review an award made by the Industrial Accident Commission, of compensation for the death of one Walter J. Leigh, who at the time of the accident which caused his death was a car conductor in the employ of Pacific Electric Railway Company. The beneficiaries of the award are the widow and minor son of said Leigh. On March 5, 1932, Leigh was employed on tha...
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This is an appeal by plaintiff from a judgment of dismissal of its suit entered by the Superior Court for the County of Los Angeles on motion of the defendants on the grounds (a) that contentions of the plaintiff have already been adjudged adversely to it in an action in said court numbered 279048, wherein plaintiff herein was plaintiff, and defendants were said Henshey, Tatem et al., defendants h...
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The plaintiffs herein are David Peters and William Peters. The amended complaint contains two counts. In the first count, plaintiff David Peters alleges that on the eighteenth day of June, 1931, at or near Salyer, in the county of Trinity, the defendants by force compelled him to go to the town of Weaverville, and that said defendants did then and there imprison him in the county jail of Trinity C...
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This is an original proceeding in this court in which the petitioners seek to vacate an order and award of the State Industrial Commission. The claimant, J.D. McCarter, had been working for the petitioner United Service Street Car Company for 15 years previous to the injury involved herein. On the 27th day of January, 1933, while employed by the petitioner, he received an accidental personal injur...
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L.D. Bronson, personally and on behalf of all parties similarly situated, who claim to have owned the mineral rights in and to the real estate involved herein prior to foreclosure, who will hereinafter be called plaintiffs, appeal from a judgment and order of the district court of Logan county, Okla., sustaining a motion to strike *Page 448 filed on behalf of J.A. Reed and wife, former owners of ...
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This is an appeal by the plaintiff in an action in the county court of Love county, Okla., from a judgment of that court in favor of the defendant therein. The action was on a promissory note of which the plaintiff claimed to be the owner in due course for value before maturity. The defense was that there was misrepresentation in the inducement to the execution thereof, and that the plaintiff was ...
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This action was brought in the district court of Garfield county, Okla., by the town of Covington, a municipal corporation, against R.A. Sneed, State Treasurer; R.A. Sneed, individually; C.G. Shull, Bank Commissioner; C.G. Shull, individually; American State Bank of Covington, Okla., and E.R. Stolaberger, liquidating agent of the American State Bank of Covington, and E.F. Fitzgerald. Ray O. Weems,...
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This is an original action in this court to review an award of the State Industrial Commission entered in favor of A.M. Hester, claimant, against Leo Sanders and the Zurich General Accident and Liability Insurance Company, respondents. It appears that on July 14, 1933, claimant, while in the employ of respondent, Sanders, received an accidental personal injury which resulted in the loss of one eye...
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This is an original action in this court to review an order and award of the State Industrial Commission rendered and entered of record on the 4th day of August, 1933. This is the second time this case has been before this court, the petitioners having requested and obtained a review of an order and award of the Commission rendered in favor of the claimant on November 18, 1932 (164 Okla. 110, 23 P...
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This is ail appeal from the district court of Jackson county, Okla., wherein El Reno Mill Elevator Company, a corporation, is plaintiff, and C.G. Shull, State Bank Commissioner, and J.R. Symcox, liquidating agent of Citizens State Bank, Altus, Okla., are defendants. The parties appear in this court as plaintiff and defendants, as they appeared in the trial court. Plaintiff's suit was brought for ...
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Plaintiff, the owner of a Buick automobile, stored it with defendant, the operator of a storage garage, and paid, or agreed to pay, a monthly charge therefor. The contract of storage was made by John MacPherson, secretary and treasurer of plaintiff corporation, who testified that his contract covered the storage of three cars, a Ford, a Dodge truck, and the Buick. He testified that his instruction...
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This is an appeal by the defendant Martha C. Whitesel from a judgment foreclosing two materialmen's liens filed against her property, one by plaintiff and the other by plaintiff's assignor, the Davis Mercantile Company. The property, formerly defendant's home, consists of a house and lot in the city of Polson. When she removed with her family to Seattle, the property was rented. The house was habi...
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This is a Workmen's Compensation case. Arthur W. Shaul, the workman herein, was employed by the Colorado Fuel Iron Company, appellant herein, at its mines at Sunrise, Wyoming. On January 10, 1931, he was lowering coal from the surface through a shaft to the second level of the mine by the use of a hand windlass, which in some manner struck him on the left cheek, causing an apparently severe injur...
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This is a proceeding by direct appeal to review an order of the District Court of Carbon County sustaining a motion of the Ramsay Motor Company, as plaintiff below, respondent here, for leave to amend an attachment affidavit, and denying a motion of J.D. Wilson, as defendant below, appellant in this court, to quash and vacate the attachment phase of the action presently to be mentioned. The partie...
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The District Court of Washakie County granted the defendant and appellant, Ida Holtz O'Day, a decree of divorce from the plaintiff and respondent, Jack O'Day, the relief being awarded upon her cross petition charging extreme cruelty. The decree also set over to her, as against him, all the personal and real property in which these parties held or claimed an interest, except Lot 6 in Block 6, First...
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In this case, Vera Julia Maunsell seeks a review of an order made by the district court in a probate proceeding, by attempted proceedings in error. A so-called *Page 31 abstract of record has been filed, briefs of the parties submitted, and the cause is before us for disposition on the merits. Very obviously, as the matter stands, we cannot thus give it consideration. Wyo. Rev. St. 1931, Sec. 89-...
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This cause is undertaken to be brought here by the direct appeal method of review procedure. Unfortunately, the statute controlling the matter of this court's acquiring jurisdiction of the case, apparently has not been obeyed. The judgment sought to be reviewed was entered April 17, 1933. On April 20, three days later, the Wyoming Automotive Company filed its notice of appeal but there is nothing ...
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The petitioner, L.B. Price Mercantile Company, brings before us for review an award of the Industrial Commission in favor of the wife and two daughters of L.D. Evans, who was killed in an automobile accident on January 19, 1933, while working for the petitioner. The Commission found that the injuries causing his death were sustained in an accident which arose out of and in the course of his employ...
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This appeal is taken from a default judgment in favor of plaintiff and an order after judgment refusing to grant defendant's motion to vacate judgment. We shall refer to the parties as plaintiff and defendant, it being understood that plaintiff is the appellee. The nature of the question is such as to require a pretty complete history of the court proceedings below. The case was commenced in Apach...
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Jimmie Hunter, hereinafter called defendant, was convicted of the crime of assault with intent to commit robbery. After the usual motion for new trial was overruled, the court rendered judgment that he was guilty, but suspended the pronouncing of sentence for a period of seven years, and released the defendant from custody. Notwithstanding the fact that he was not incarcerated, the defendant has a...
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This dispute involves the ownership or right of possession of certain cattle. On July 29, 1924, the plaintiff Martinez turned over to defendant Garcia, under contract, some range cattle on shares. On November 30, 1929, there were due, according to the complaint, from Garcia to Martinez under said contract 59 head of cows, 46 of which were branded M on left ribs and the remaining 13 on left ribs....
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 273 Reclamation District No. 730, one of the defendants in these consolidated cases, was organized in 1902 under the provisions of the Political Code applicable to the formation of reclamation districts. In 1907, an assessment (the first) was levied under a p...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 284 This is an appeal by the defendants, upon the judgment-roll and a bill of exceptions, from the final judgment in favor of the plaintiff, in an action at law to recover a deficiency judgment in the sum of $28,474.83, claimed to be the balance due the plain...
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This is an appeal from a judgment based upon an order striking out the answer of the appellant on *Page 363 the ground that the same was sham and irrelevant and granting plaintiff's motion for judgment on the pleadings. The action was to foreclose a mortgage given to secure a promissory note executed by the appellant, the Fraternal Finance Company, in the sum of $100,000, no part of which has bee...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 342 The petitioner, as state director of finance, seeks a writ of mandate to compel the respondent state controller to audit and approve six demands transferring certain amounts from the emergency fund to the funds of the departments in whose favor the demand...
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This is a proceeding to review an order of the Industrial Accident Commission denying compensation to petitioner for injuries received on April 7, 1931, while he was working in Balboa Park in the city of San Diego. It appears that he received compensation up to March 1, 1933, when it was terminated by the commission on the ground that he was not an employee of the county of San Diego as that term ...
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Appellants herein were accused by information of violations of the State Narcotic Act. A demurrer to the original information was interposed and sustained, and ten days allowed in which to file an amended pleading. The date of this order was February 23, 1933. The time allowed to amend expired March 6, 1933. No extension of time was sought, or ordered by the court. On March 7th an amended informa...
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For about seven years prior to February 10, 1933, Chester T. Moore had been employed as a truck driver, salesman, delivery-man and collector by Nurmi's Bakery in Fresno. His duties were to solicit sales of and make delivery of bakery products and mayonnaise and make collections. His route ran from Fresno along the highway paralleling the railroad tracks and into Tulare County. He usually left the ...
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This appeal is from an order vacating and setting aside a sale under execution of 3,933 shares of stock of the Airway Laundry, Ltd., a corporation, property of the judgment debtor. The order appealed from was made after hearing upon an order to show cause why the sale in question should not be vacated. [1] Inasmuch as the material facts here involved, as well as the legal questions raised, are sim...
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From a judgment in favor of the plaintiff enforcing the specific performance of a written contract the defendants have appealed and have brought up the judgment-roll and a bill of exceptions. The plaintiff commenced the action as executor of the estate of Hancock Banning, deceased. During his lifetime Hancock Banning, Esperanza Sepulveda de Davis and Lucy Banning Ross entered into a tripartite con...
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THE COURT. The appeal herein to all intents and purposes has been abandoned. [1] The transcript was filed on May 20, 1931, but thereafter no steps were taken in furtherance of the appeal. No briefs have been filed nor extensions of time applied for or granted; nor was any response made to the order heretofore issued to show cause why the appeal should not be dismissed. Therefore, under the authori...
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The petitioner herein sets forth that in a certain case pending in the Municipal Court of the City of Los Angeles a writ of attachment was secured by the plaintiff and on the 18th of September, 1933, was levied on certain citrus fruits and supplies. On the 19th of September, 1933, the petitioner herein filed a third party claim with the marshal of the Municipal Court, who had levied the writ, and ...
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Respondents move to dismiss this appeal upon the ground that the notice of appeal was not filed within the time required by law. No brief has been presented in opposition to the motion, and the matter was submitted without oral argument. We are of the opinion that the motion must be granted. Section 939 of the Code of Civil Procedure provides that an appeal may be taken from a judgment within sixt...
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This is an appeal from a judgment for one thousand dollars damages awarded plaintiff for injuries to her automobile and her person suffered in a collision at the intersection of Moroa and Floradora Avenues in the city of Fresno during the noon hour of January 6, 1931. Defendants urge two grounds for a reversal of the judgment. (1) That the evidence fails to show any negligence on the part of E.A. ...
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On this appeal attack is made upon that part of a judgment in a divorce action which awarded to respondent property claimed by appellant as her separate estate. The parties to this action were married in 1920. At the time of the marriage, the husband, respondent herein, was possessed of property valued at approximately $500,000, and shortly after the marriage he inherited other property of about t...
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In 1927 plaintiff purchased from defendants 160 acres of land in Napa County. Approximately three and one-half years later she brought this action against defendants for damages for mistake, alleging that a 19-acre tract of timber had been represented by defendants as a part of the 160-acre tract, whereas it was not so contained, and if the particular 19 acres of wooded land had been a part of the...
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Appellants having filed their brief containing a statement of their grounds of appeal, now come the respondents and move for dismissal of the appeal or affirmance of the judgment, upon the grounds that the appeal was taken for delay only, and that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. (Rule V, sec. 3.) We shall decide the mot...
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This case was before this court upon a previous appeal. (SeeFirst English Evangelical Lutheran Church v. Dysinger,120 Cal.App. 139 [6 P.2d 522].) A judgment in favor of the defendants was reversed and upon a second trial judgment went for plaintiffs and the defendants have appealed therefrom. The facts of the first trial are stated in the opinion of the court and substantially the same evidence wa...
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Plaintiffs, respectively, are the administratrix of the estate and the surviving wife of Bert Roher, deceased. They joined in bringing this action to recover certain funds in the possession of defendants, alleging that *Page 295 the same were community assets and that upon the death of the decedent, who died intestate, his surviving wife Sarah Roher became the absolute owner of the whole thereof ...
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[1] Pending the hearing of the appeal in the above-entitled cause, one of the appellants, Pacific States Savings and Loan Company, applied to this court for and *Page 299 was granted a writ of supersedeas to stay the execution of that part of the judgment directing said company to pay "forthwith" a sum of money in its possession, which the trial court by its judgment decreed was the property of o...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 82 The plaintiffs had judgment against the defendants in the sum of $4,000 for and on account of personal injuries alleged to have been suffered by the plaintiff, Ada M. Coppock, on account of the negligence of the defendants. From this judgment the defendant...
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Appellant was convicted on eleven counts of an indictment returned by the grand jury charging her with the crime of robbery in seven counts, attempted robbery in one count and in three counts with assault with a deadly weapon with intent to commit murder. This is an appeal from the judgments of conviction and from the order denying motion for a new trial. The questions raised upon appeal to t...
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Appellant was charged by an information filed by the district attorney of Kings County with the crime of burglary and also a prior conviction of a felony. *Page 405 He entered a plea of guilty to the charge of a prior conviction, and not guilty to the charge of burglary. The jury returned a verdict of guilty and judgment was pronounced upon him. This appeal is taken from the judgment and from the...
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This is an action for breach of contract between a principal and factor. Plaintiff recovered judgment in the trial court from which defendant appealed, whereupon plaintiff now moves for a dismissal of this appeal, or an affirmance of the judgment. The motion to dismiss being denied, we will now consider the alternative, basing our examination upon the bill of exceptions and the opening brief of ap...
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The defendant was charged with the crime of assault by means of force likely to produce great bodily injury, it being alleged that the assault was committed on one John Nedom by striking him with his fists and kicking him with his feet. He was found guilty by a jury and has appealed from the ensuing judgment and from an order denying his motion for a new trial. The record shows that the appellant ...
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Defendant appeals from a judgment of conviction of the crime of "issuing bank check, with intent to defraud", as denounced by the provisions of section 476a of the Penal Code, as well as from an order by which his motion for a new trial was denied. Essentially, the facts upon which the conviction of defendant depended were that on a certain Saturday afternoon, in payment of the price of a watch wh...
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The defendant appeals from a judgment of conviction following a trial wherein the indictment charged the defendant with contributing to the delinquency of a minor, in the following language: "The Grand Jury of the County of Sacramento hereby accuses Mabel Wortman of an indictable misdemeanor, to-wit: Contributing to the delinquency of a minor on or about the 20th day of October, 1933, at the Count...
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This is an action for damages for injuries received by plaintiff resulting from being struck by an automobile operated by defendant Lillian Crump. Defendants E.M. Crump and Lillian Crump are husband and wife and at the time of the accident Lillian Crump was operating the automobile by and with the consent of her said husband. This action was tried by a jury which returned a verdict in favor of pla...
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The petitioner seeks to obtain his discharge from custody by means of a writ of habeas corpus on the ground that the statute under which he was convicted of wilfully and fraudulently failing to pay the wages of an employee upon his discharge, is unconstitutional, and because the complaint fails to state a public offense. The same matter was previously determined adversely to the petitioner upon a ...
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This is a petition for writ of review of an order terminating as of February 18, 1933, liability of respondent insurance carrier under a previously entered compensation award. Petitioner claims that the evidence is not sufficient to sustain the order. The original injury occurred November 21, 1931, by reason of an abrasion at one side of the left heel, followed by infection. An award was made f...
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The defendant was charged with the crime of grand theft. He waived a jury and upon a trial by the court, he was convicted of the crime charged. He appeals from the final judgment of conviction and the order denying his motion for new trial. The main contention of appellant is that the evidence was insufficient to sustain his conviction and we shall therefore proceed to a consideration of the evide...
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MEMORANDUM CASES. This petition for a writ of habeas corpus is a companion proceeding with that of In re Sears, (Crim. No. 1340) ante, p. 308 [30 P.2d 571], in which an opinion was this day filed in this court. [1] Both petitioners were charged in the same complaint which was filed in the Justice's Court of Angels Township, Calaveras County, and convicted of wilfully and fr...
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An information was filed against defendant in the county of Napa for issuing a check upon a bank with intent to defraud. During his confinement in the county jail, awaiting trial upon this charge, a second charge was filed against him wherein it was alleged he wilfully, unlawfully and feloniously broke and escaped from said Napa County jail while confined therein aw'aiting trial upon the charge a...
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The appellant pleaded guilty to the crime of burglary. Judgment was pronounced on July 21, 1930, the court finding the crime to be burglary in the first degree. It now appears that no evidence as to the degree of the crime was taken by the court and that, in fact, the crime committed was burglary in the second degree. *473 On October 28, 1933, the appellant, who was then confined in the state...
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This is an appeal in a proceeding in certiorari, from a decree of the Superior Court of San Joaquin County, canceling an order of the board of supervisors of that county which was previously made, authorizing the city of Stockton to annex certain uninhabited territory pursuant to the Statutes of 1899 and amendments thereto. (Stats. 1899, p. 37, and amendments thereto; 2 Deering's Gen. Laws of 1931...
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Isabel T. Rico is the widow, and the other petitioners are the minor children of herself and Manuel P. Rico. This is a proceeding to review an order of the Industrial Accident Commission denying compensation to petitioners for the death of Manuel. *Page 773 Manuel was an unemployed and indigent resident of the city of San Diego. To relieve his financial distress and that of his family he was give...
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From a judgment in favor of the plaintiffs the defendant has appealed. On the second day of May, 1927, R.R. Horwitz, being the owner of certain land in Los Angeles County, and A.H. Crampton, being the owner of a rotary equipment for drilling oil wells, entered into an indenture of lease, by the terms of which Mr. Crampton leased to Mr. Horwitz his drilling equipment for the purpose of drilling a w...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 213 This is an action to foreclose a mortgage. The decree of foreclosure gave judgment against The J.C. Forkner Fig Gardens, Inc., for any deficiency remaining after sale of the mortgaged property, but not against the other defendants. We will hereafter refer...
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THE COURT. [1] The controlling question presented by this appeal, namely, the constitutionality of sections 9(b), 2 (10), (a), (b), (c) and (e) of chapter 222 of the Laws of 1929 (Workmen's Compensation Act, Stats. 1929, p. 420), was brought before the District Court of Appeal of the Fourth District, in the case of People v.Standard Oil Co., 132 Cal.App. 563 [23 P.2d 86], and there decided adverse...
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This is an application for a writ of habeas corpus filed on behalf of J.J. Williams, alleging that he is unlawfully detained by the constable of the township of Heber, in the county of Imperial. The petition alleges that Heber Public Utility District, in the county of Imperial, is a public utility district organized and existing under and by virtue of the state laws (Stats. of 1921, p. 906, as ame...
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This is an action to quiet title to 160 acres of land in Kettleman Hills in Fresno County. The land in question was owned in 1914 by the British Californian Oil Company, Ltd., a California corporation. This corporation owned several properties located near Los Angeles, and also this piece of land in Fresno County which was then regarded as of little value. This property was rough and arid and was ...
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The charging part of the information to which the defendant pleaded not guilty and upon which he was tried before a jury for murder and convicted of manslaughter is as follows: "The said Harold Ernest Wolcott is accused . . . of the crime of murder, a felony, committed as follows: That the said Harold Ernest Wolcott on or about the 13th day of August, 1933, . . . did wilfully, unlawfully and felon...
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This is an appeal by plaintiff from the judgment of the trial court denying his petition for a writ of mandate. *Page 411 Plaintiff was a civil service employee, classified as a "carpenter foreman", and was employed as such in the Bureau of Power and Light in the Department of Water and Power. In July, 1928, his employment was terminated because of "lack of funds". More than two years thereafter ...
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This is a companion case to Jenkins v. Board of CivilService Commission, (Civil No. 9356) ante, p. 410 [30 P.2d 606], the opinion in which last-named case has been this day filed. *Page 415 [1] The pleadings, evidence, findings, judgments and briefs in the two cases are practically the same. Plaintiff herein was employed as a carpenter foreman in charge of the construction work on substation No....
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 263 This action was instituted by plaintiff, a judgment creditor of the defendant H.Z. Adams, for the purpose of securing a decree setting aside certain conveyances of real property made by the aforesaid defendant to the defendant Carrie A. Love, which were a...
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The intervening plaintiff, London Guarantee Accident Co., Inc., appeals from a judgment of nonsuit. After the appeal was taken respondents were adjudged bankrupt, and the trustee in bankruptcy has declined to file a brief; therefore the appeal was submitted for decision on appellant's brief. Upon examining the same, however, it becomes apparent that the points urged therein are insufficient to ju...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 313 THE COURT. On February 14, 1930, James L. Gordon and Lillian J. Gordon, his wife, with the Farmers' and Merchants' National Bank of Los Angeles, a corporation, executed a declaration of trust by which certain community personal property, acquired by the G...
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This is an action wherein and whereby plaintiff seeks to have his rights declared under the terms of a written contract. The plaintiff is the assignee of the original party to the contract and rather than constantly refer to the nominal plaintiff we will use the term "plaintiff" throughout as meaning the assignor, inasmuch as no point is presented regarding the assignment. We find it unnecessary t...
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This is an appeal from an order of the Superior Court of Sacramento County appointing Guy Y. Hyland guardian of the person and estate of Mae Pauline Pomin, a minor. The minor was born May 30, 1920, out of wedlock. Her mother, Anna Bahnsen, surrendered the custody of the child to her mother, Nicolena Bahnsen, immediately after the birth of the child, who then promptly delivered the child to the ...
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The defendant has appealed from a judgment of $4,148.79, which was rendered against it in a suit for conversion of money on deposit in its bank. The appellant contends the money was deposited to the credit of *Page 301 Kitrick Hall, who were grain merchants and brokers, and that it was derived from the proceeds of the sale of barley previously sold and delivered to them by the plaintiff as evide...
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This is an appeal by defendants Commercial Discount Company, L. Clark Conner and R. S. Tatum from *788a judgment entered against them after verdict, in an action for conversion of an auto truck body. Commercial Discount Company (herein referred to as appellant), as assignee of Conner, held a conditional sales contract on a combined auto truck and trailer (hereinafter called the truck), sold to one...
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This is an appeal from a judgment dismissing an application for a writ of mandamus, after the court had sustained a demurrer to the affidavit filed in support of the application for the writ. The salient facts alleged in the affidavit are that respondent Norton, as assessor for Pierce county, fixed the assessed valuation of all property in the county for purposes of taxation at $55,780,370; that s...
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This is an appeal from a judgment entered by the court below upon the pleadings in two consolidated actions involving the same state of facts. The allegations of the respective pleadings are substantially as follows: Appellant began one action against respondents and others for the foreclosure of a real estate mortgage which had been assigned to it for a valuable consideration by the Washington Mu...
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This is an action brought under Rem. Rev. Stat., § 1188-2 etseq., by a landlord to foreclose his statutory lien for rental due upon crops grown on the demised farm land. Personal judgment was entered against the tenant. The lien was established as claimed, and foreclosed upon a certain portion of the crop which had been retained by the sheriff, and the property so retained ordered sold to satisfy ...
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I am unable to see any sound distinction between this case and the case of State v. McFarland, 60 Wn. 98, 110 P. 792. In my opinion, that case is out of harmony with the general rule, and since it stands alone, should be overruled. In all other respects, I concur with the majority. *Page 663 ...
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Frank N. Hammerschmith, while engaged in a logging operation, sustained an injury, for which he filed a claim for compensation with the department of labor and industries. After investigation by the department and an appeal to the joint board, the board rejected the claim, on the ground that claimant was not a workman, but an independent contractor. The claimant appealed to the superior court of T...
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The defendant, Sjogren, being the holder of a chattel mortgage on an auto truck executed by one Overaa, started foreclosure by notice and sale. The plaintiffs, claiming ownership of the truck, brought this action to transfer the proceedings to the superior court and to enjoin sale by the sheriff. The sole issue presented is whether Overaa, at the time he executed the chattel mortgage, was owner of...
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This is an appeal from a judgment allowing, as a preferred claim against the insolvent First Bank of Wilkeson, the sum of $426.75. The court's findings of fact, which are amply sustained by the evidence, are summarized as follows: On June 14, 1929, Stanley Zydek, the guardian of the estate of four minor children, entered into a written real estate contract with Harry Kepka, under the terms of whic...
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Respondent, J.L. Smith, sustained an injury while engaged as an employee in an extra-hazardous occupation. His claim for compensation *Page 570 was recognized and allowed by the department of labor and industries, and thereafter the disability was classified as a permanent partial one of nine degrees. He, being dissatisfied, applied to the joint board of the department of labor and industries for...
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— The parties to this action were divorced by final decree entered January 17, 1930, which decree confirmed the provisions of an interlocutory decree theretofore entered. Those provisions, so far as now material, granted a divorce to the plaintiff wife, gave her the custody of the minor child with the right in the defendant to visit the child, and directed the defendant to pay seventy-five dollar...
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The defendant was convicted of the crime of murder in the second degree on two counts. He appeals from judgment and sentence pronounced on the verdict, assigning error in the admission of evidence in two particulars and the refusal of the trial court to give an instruction submitting the crime of manslaughter to the jury. *Page 638 Consideration of the latter assignment necessitates a somewhat de...
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This action was brought by respondents Thompson and Hatton to foreclose laborer's liens. Later, respondent Fox, doing business as the Seattle Export Lumber Company, intervened and sought to *Page 607 foreclose his materialman's lien. At the conclusion of the trial, the court awarded a decree foreclosing the three liens, but made no findings of fact. The material was furnished and labor performed ...
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This action was based upon a life insurance policy. The defendant denied liability upon two grounds, one of which was that the policy had lapsed, and had not been reinstated at the time of the death of the insured. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of one thousand dollars, which was the face *Page 675 value of the policy a...
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This action was brought by the receiver of an insolvent corporation to recover moneys paid by the corporation to one of its creditors after it became insolvent. The defendant pleaded two affirmative defenses, one of which was that, at the time it received the payments, it did not have any reasonable cause, or any cause, to believe that it was receiving a preference. The cause was tried to the cour...
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— This is a companion case to that of Sterrett, v. White Pine Sash Company, ante p. 663, and upon the authority of that case, the judgment will be affirmed. ...
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ON REHEARING. This cause having been argued to a Department of the court on October 30, 1933, and the opinion of the trial court having been affirmed (ante p. 33, 27 P.2d 1073), and the cause having been thereafter assigned for rehearing En Banc, and having been argued to the court sitting En Banc on June 4, 1934, and the court having considered the questions presented an...
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This is an action to recover for work performed and material furnished, and to foreclose asserted liens therefor. After trial before the court, findings of fact, conclusions of law and judgment were entered granting plaintiff recovery in the amount sued for, but refusing to allow and establish the claims as liens upon the property. Plaintiff has appealed. The record discloses that the liens here i...
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This is a companion case to that of Sterrett v. White PineSash Company, ante p. 663, and upon the authority of that case, the judgment will be affirmed. *Page 705 ...
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Chris Brunhoeber, executor of the will of John Mandeleir, deceased, as plaintiff, filed suit against Harry E. Davis and other defendants, seeking to subject certain real property located in Kay county, Okla., to a judgment lien held by plaintiff against defendant Davis. Upon the trial of said cause the court found that the premises under consideration were the homestead of defendant Davis, not sub...
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On September 10, 1932, this proceeding in error was commenced by the filing of a petition in error with case-made attached complaining of a .judgment rendered wherein L. R. Stith was plaintiff, appellant from a proceeding of Osage county court, and said John Pryor was defendant and appellee. The plaintiff in error herein seeks reversal of the judgment of the district court entered on the 15th d...
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The record shows that the defendant in error, who will be referred to hereinafter as the plaintiff, instituted an action in the district court of Hughes county against the plaintiff in error, who will be referred to hereinafter as the defendant, for an accounting of a broker's commission of $2,000, in which sum he claimed a one-half interest. The trial court rendered judgment for the plaintiff for...
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On the 6th day of May, 1932, a judgment was rendered in favor of the plaintiff, defendant in error herein, and on the 1st day of November, 1932, plaintiff in error prosecuted its appeal from that judgment, and on the 22nd day of Novemner, 1932, filed its brief herein. The defendant in error has filed no brief herein and has offered no excuse for his failure to do so. The authorities cited appea...
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This is an appeal by Winkler McQueen, Inc., a corporation, from a judgment of the county court of Stephens county in a tax ferret proceeding instituted before the county treasurer for the purpose of having placed upon the tax rolls, as omitted property for the years 1927, 1928, 1929, and 1930, one rotary drilling rig and one joint of casing of the agreed value of $2,500, belonging to said corpora...
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This action was commenced in the district court of Oklahoma county on the 10th day of September, 1932, and on the 23rd day of September thereafter, George W. Swisher was appointed receiver of the property involved in the action. An application to discharge receiver was denied, and from this order an appeal is taken to tnis court. The appeal was filed herein October 18, 1932, and on the 5th day of...
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This is an appeal from a judgment of the court of common pleas of Tulsa county wherein the defendants in error were the plaintiffs and the plaintiffs in error were the defendants. The record shows that the Tulsa Industrial Loan Investment Company secured a judgment against the defendant P.R. Engler: that it assigned the judgment to the plaintiff, Morris R. Welch; that execution was issued and lev...
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On the 28th day of April, 1932, a judgment was rendered in favor of the plaintiff, defendant in error herein, and on the 10th day of October, 1932, H. B. Gibbins prosecuted his appeal from that judgment, and on the 2nd day of December, 1932, filed his brief herein. The defendant in error has filed no brief and has offered no excuse for his failure to do so. Upon the authority of the opinions of...
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This appeal was filed herein August 23, 1932, and on November 2, 1932, plaintiffs in error filed brief. The defendants in error have filed no brief herein, and have offered no excuse for their failure to do so. Upon the authority of the opinion of this court many times decided, it is not the duty of this court to search the record for some theory upon which to sustain the judgment of the lower ...
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This is an action for injunction filed in the district court of Coal county by Felix Wheeler and W.H. Stouse, taxpayers of said county, against W.J. O'Brien, county treasurer of said county, wherein it is sought to enjoin said treasurer from apportioning to the common school funds of said county certain funds collected by him from the sale of property purchased by the county at a tax resale. The a...
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This is an appeal from the district court of Pottawatomie county by E.B. Cook, hereinafter referred to as defenddant, against Eva Bruss, hereinafter referred to as plaintiff. From an order of said court sustaining a demurrer to defendant's petition to vacate a judgment, defendant appeals. Plaintiff, Eva Bruss, was the holder of a tax deed on lots 1 to 6, in block 73, in the town of Asher, Okla. On...
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On the 28th day of February, 1931, the court entered its order making final a temporary injunction. Mo *472 tion for new trial was duly filed, and on the 14th day of March, 1931, the court overruled the same and the cause was filed herein April 24, 1931. On the 6th day of July, 1932, plaintiff in error filed brief herein, and the defendant in error has failed to file brief or to offer excuse ...
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On the 15th day of March, 1927, the W. T. Rawleigh Company recovered a judgment in the district court of Garvin county against S.E. Patton and others. Executions issued from the district court of Garvin county upon this judgment to the sheriffs of Garvin, McClain, and Pontotoc counties were returned indorsed "no property found." On the 6th day of April, 1929, the said S.E. Patton became the owner ...
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This proceeding on appeal was commenced August 2, 1932, by the filing of case-made and petition in error complaining of judgment of the court foreclosing a mortgage, but failing and refusing to render personal judgment against the defendants. On the 4th day of April, 1933, the plaintiff in error filed its brief herein. The defendants in error have filed no brief herein and have offered no excuse f...
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The decisions of this court in the above causes,162 Okla. 185, 19 P.2d 168, as applied to causes Nos. 23218, 23219, and 23342, were appealed to the Supreme Court of the United States. The judgments of this court were there reversed (Johnson Oil Refining Co. v. Oklahoma, 54 S. Ct. 152, 78 L.Ed. ___) and the causes were remanded to this court for further proceedings not inconsistent with the opinion...
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The plaintiff claims title to the 80 acres of land in question under a deed executed by her parents, Ollie A. Wilson and Charles L. Wilson, under date of August 18, 1913. The defendants claim title to the same land under conveyance as follows: Warranty deed under date of March 23, 1914, executed by plaintiff and her parents, in favor of William L. Wilson, brother of plaintiff's father, and recorde...
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This action was commenced in the district court of Washita county by Belle Howard, Stella Howard Thomas, and Bertha Howard Larson, daughters of Belle Howard, against Grace M. Hawkins and 18 other defendants as an action in ejectment and to quiet title to the N.E. 1/4 of section 8, township 10 N., range 19 W. The cause was tried to the court and judgment was rendered in favor of Stella Howard and B...
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This is a mandamus action brought on behalf of the state of Oklahoma ex rel, Wm. H. Murray, Governor, against Frank C. Carter, State Auditor of the state of Oklahoma, and Ray O. Weems, State Treasurer, to compel the defendants to allow and pay eight claims against the state, which have been set forth in eight separate causes of action. The first seven of said claims and causes of action involved c...
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This is an original action in this court to review an award of the State Industrial Commission made in favor of H.A. Sanford, claimant, against the New State Ice Company and the Travelers Insurance Company, respondents. The record shows that on August 4, 1928, claimant was employed by the respondent New State Ice Company, and while cranking a truck motor the motor backfired and his right arm was b...
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This action was commenced in the district court of Oklahoma county by Addie Baker to quiet her title to an undivided one-half interest in the mineral rights on 80 acres of land in Oklahoma county. The rights of the plaintiff were admitted *Page 528 by all. The dispute was between defendants in the trial court, and this appeal is taken by R.H. Wilson, Dora May Humphreys, G.J. Humphreys, and Permel...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for five years, and he appeals. The testimony in this case is brief. R. J. Davis testified on behalf of the state, in substance: "My home is in Denton, Tex.; on the 12th day of November, 1932, I was in the Santa Fe yards in Altu...
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Lester Calvert, hereinafter referred to as defendant, was convicted in the district court of Kingfisher county of the crime of stealing a calf and, after the jury had failed to agree upon the punishment, was *Page 347 sentenced by the court to imprisonment in the state penitentiary for a term of two years. There is practically no controversy as to the facts, so far as the stealing of the calf is ...
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Appellant has moved to strike from the filed transcript numerous matters of record which were included on a supplemental praecipe by appellee. The grounds of the motion are that appellant, desiring to have a single question reviewed, set it forth in his praecipe, and called for such portions of the record as he deemed necessary to such review; that the additional portions of the record called for...
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This case is before us on motion for rehearing. We deem it convenient to withdraw the opinion heretofore handed down and to substitute the one to follow therefor. Plaintiff (appellee before us) sued in the district court of Rio Arriba county to quiet title to a portion of the Juan Jose Lobato land grant located in said county, naming innumerable defendants including the *Page 213 owners of the Po...
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The appellants, as plaintiffs below, sued the appellee in the district court of Socorro county basing their cause of action upon the following state of facts, to wit: A certain check of Crown Milling Company of Socorro, payable to the order of one J.B. Kelly in the sum of $515, duly indorsed by him to the order of county treasurer, was delivered to one A.G. Whittier as delinquent tax collector of ...
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This is an action on two promissory notes against D.R. Shurtliff as maker and John Schweberger and Joseph Weidner as indorsers. The complaint filed August 15, 1931, alleged the execution and delivery of the two notes dated January 1, 1918, payable on demand; that the notes were duly presented for payment and demand made on the maker on or about January 2, 1919; that payment was refused and notice ...
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This is an action for damages for alleged breach of contract. From a verdict and judgment in favor of plaintiff, defendants appeal. The complaint alleges that on October 2, 1930, plaintiff and defendants made and entered into a contract in writing whereby plaintiff agreed to furnish and install according to plans and specifications all necessary plumbing and heating materials for a state mental ho...
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Action by James W. Purcell against Washington Fidelity National Insurance Company. From an adverse judgment, defendant appeals. *Page 476 AFFIRMED. The policy of insurance which the plaintiff is seeking to enforce against the defendant contains the following provisions: "Confining Illness Indemnity Payable for Life (1) The company will pay * * * for disability resulting from diseases, * * * and w...
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Rehearing granted and former opinion adhered to March 18, 1934 ON REHEARING (30 P.2d 751) IN BANC. W.M. DUNCAN, Judge. On rehearing. JUDGMENT OF CONVICTION AFFIRMED. The defendant, Theodore Jordan, a colored man, was tried and convicted of the crime of murder in the first degree. The death penalty was imposed. On appeal the judgment of...
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In Banc. Suit by R.C.A. Photophone, Inc., against William P. Sinnott, trustee and individually. From a decree of dismissal, plaintiff appeals. AFFIRMED. On October 4, 1930, plaintiff entered into a written agreement whereby it agreed to lease to the defendant William P. Sinnott, Trustee (referred to in contract as Exhibitor), certain electrical sound-reproducing equipment for a period of 10 years....
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Action by Will B. Haines against the Pacific Bancorporation. From an adverse judgment, plaintiff appeals. AFFIRMED. This is an action to enforce a contract alleged to have been entered into by defendant with other persons for the benefit of plaintiff. The defendant answered, denying the allegations of the complaint. At the beginning of the trial, the defendant objected to the introduction of any t...
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Suit by Warren G. Allen against H.E. Roufs (also known as Herman E. Roufs) and others. From a decree of dismissal, plaintiff appeals. AFFIRMED. This is a suit to foreclose a mechanic's lien for labor performed in constructing a house and *Page 452 garage on the east half of lots 45, 46, 47, and 48, in block 11, St. Francis Park, Klamath Falls, Oregon. From a decree dismissing the suit, plaintiff ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 227 On November 17, 1921, the Industrial Accident Board approved an agreement entered into by the State Insurance Fund, the insurance carrier, and the injured employee, C.B. Kelley, dated November 12, 1921, designated a "recommendation," in words and figures,...
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Appellant, California Jewelry Company, Inc., brought this action on a promissory note for $15,000 given as the outgrowth of negotiations between one Kelley, who was a jeweler at Hailey and who for some time prior thereto handled jewelry of appellant and respondent, with reference to the sale and purchase of a Marquise diamond ring, sent by appellant to Kelley and then delivered to respondent. The ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 215 August 5, 1922, appellant while employed as a guard at the Idaho State Penitentiary, was struck on the head with a stone, by a convict, fracturing his skull, necessitating a decompression operation for the removal of a piece of his skull, and leaving an o...
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This is a case brought by H.A. Day, plaintiff, against C.A. Smith and others, as defendants, for converting certain property and rights. A demurrer was filed to the amended petition and was sustained by the court. The plaintiff elected to stand upon his amended petition, a judgment was thereupon entered *Page 519 dismissing the case, and from that judgment the plaintiff has appealed. The amended ...
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On March 24, 1931, B.X. Elliott, as defendant, was found guilty, by the verdict of the jury in the District Court of Natrona County, of aggravated assault and battery, and thereon was given a jail sentence of two months and adjudged to pay a fine of $100. From this judgment and sentence, he prosecutes this proceeding in error. The case is before us upon the information, verdict, judgment, and sent...
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This is a proceeding under statutes, now Sections 52-207 to 52-229, R.S. 1931, for the establishment of a public road in Albany County. The respondent, owner of lands crossed by the road, claimed damages – $2.50 per acre for the lands taken, and $10,000 for lands damaged but not taken. The appraisers, acting under section 52-221, allowed the damages as claimed. The *Page 9 board of county commiss...
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Gottlieb B. Rinio and Hans Kristofferson, copartners in the meat business at Valier, Montana, died simultaneously on December 2, 1929, whereupon C.H. Kester, a banker, took over the business as a voluntary trustee, and was appointed administrator of the estate of each deceased partner. Kester contracted to sell certain real estate to Frederick Rinio, a brother of Gottlieb, for $10,800, of which $3...
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Plaintiffs commenced this action to condemn a site for the purpose of creating, constructing, installing, flooding and maintaining *Page 337 a rearing pond in which to plant, propagate and raise fish. The defendant Aitchison is the owner of the land sought to be condemned. The defendant Western is the holder of a mortgage on these premises. After the service of summons and on the return day there...
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Citing to the point that the court committed error in granting defendant company's motion for directed verdict on the ground, among others, that the complaint did not state a cause of action against the company and the evidence was insufficient, for the reason that the duty, if any, to install, maintain, repair or inspect the curb-box or service-pipe or attachments thereto from the main or lateral...
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Martha J. O'Neil died intestate in Cascade county, Montana, on February 11, 1932. She left an estate consisting entirely of real property. The heirs were her four children – M.L. O'Neil, Joseph O'Neil, Mary E. Cassady and Charles F. O'Neil. Mary E. Cassady, the daughter, was appointed administratrix on April 6, 1932. On August 31, 1932, the district court of Cascade county, a respondent herein, ma...
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This is an appeal from a judgment ordering the issuance of a writ of mandate directed to the mayor of the city of Butte commanding him to submit to the city council the name of Herbert O'Neill for confirmation of his appointment as a member of the police department of the city, and to forbear denying him an opportunity to perform such duties as "he may be required by law to perform in the use and ...
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Citing to the point that the court's refusal to permit withdrawal of the plea of guilty, under the circumstances, constituted an abuse of discretion: People v. Wheeler,349 Ill. 230, 181 N.E. 623; State v. Hare, (Mo.)56 S.W.2d 141; State v. Wassinger, 131 Kan. 316, 291 P. 743; People v. Rucker, 254 Mich. 342, 236 N.W. 801; State v. Lee Lim,79 Utah, 68, 7 P.2d 825; Hubble v. State, 41 Wyo. 275,285 P...
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This is an original proceeding in this court by the state of Arizona, on the relation of its Attorney General, hereinafter called petitioner, asking for a writ of mandamus against William M. Cox, as treasurer of the state, hereinafter called respondent, to compel him to countersign certain tax anticipation bonds, duly authorized by a resolution of the loan commissioners of the state. The responden...
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An application for compensation was made by the Royal Consul of Jugoslavia at San Francisco, California, on behalf of Milica Cvjeticanin who claims to be the widow of one Mike Svetich. The Industrial Commission made an award denying compensation and the consul has by certiorari brought the matter here for review. The record discloses that Mike Svetich was killed on January 2, 1932, at Superior, Ar...
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This is an action by Hortense M. Walter and Pacific American Fire Insurance Company, a corporation, the latter hereinafter called the insurance company, to foreclose a mortgage on certain real estate in Maricopa county, owned at the time the action was begun by C.C. Brogoitti and Eva *Page 292 A. Brogoitti, hereinafter called defendants. Judgment went in favor of plaintiffs, and the case was appe...
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A former award in this case in favor of Kilpatrick, the employee, was set aside [22 P.2d 836] because the Industrial Commission had not found the extent or percentage of injury or disability. On the return of the case to the commission it took additional evidence, and therefrom and from the evidence already before it, on December 3, 1933, found that the employee's average monthly wage was $150 at ...
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Anna Sander, widow and a resident of Maricopa county, was the owner of two lots and the improvements thereon in Glendale, said county, which were assessed to her by the county assessor for the year 1930 in the sum of $3,090. She was the owner of no other property. She died testate on June 23, 1930, without having made widow's claim to the county assessor or elsewhere for a tax exemption. In due ti...
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This is an appeal by David H. Biles, as county treasurer andex-officio tax collector of Yavapai county, hereinafter called defendant, from a judgment of the superior court of that county, commanding him to accept from W.F. Robey, as receiver of the Head Hotel Company, a corporation, hereinafter called plaintiff, a certain sum of money tendered to defendant by plaintiff, as taxes due on the propert...
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This case comes before us on certiorari from an award of the Industrial Commission of Arizona made in favor of S.C. Turner, hereinafter called respondent, against United States Fidelity Guaranty Company, a corporation, hereinafter called petitioner. There are some six assignments of error, but we think the case should be decided on the first, which is that the evidence does not sustain the findin...
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This action was instituted by Paul B. Steintorf to establish a preference against the assets of the Security Trust Savings Bank of Yuma, an insolvent, and against S.W. Ellery, state superintendent of banks and ex-officio receiver thereof. The case was tried to the court, and after plaintiff rested, on motion of defendants, judgment was rendered denying plaintiff a preference. This judgment was en...
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delivered the opinion of the court. The Industrial Commission, here referred to as the commission, awarded to Paul Shipka, claimant and co-defendant in error, compensation for permanent disability. The district court affirmed this award and plaintiff in error, called the company, brings error on the ground that there is no evidence to support the findings upon which the award was based. It is...
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ANDREW Calvin Ward sued Estelle B. Ward, as trustee, and Don F. Cowell, as administrator with the will annexed of the estate of Calvin Tracy Ward, deceased. After the evidence was in, the court directed a verdict for the defendant, and upon the coming in of the verdict rendered judgment thereon. Thereafter Cowell resigned and Estelle B. Ward was appointed administratrix. To reverse that judgment t...
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delivered the opinion of the court. Norton Montgomery and Ershine Meyer sued M. S. Badetsky for attorneys ’ fees. Badetsky defended on the ground that in the rendition of their professional services the plaintiffs were guilty of such gross neglect and incompetence as to make their services valueless. He also filed a counterclaim for damages claimed to have been caused by their negligence and in...
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THE defendants in error, as plaintiffs in the trial court, sought to enjoin the city of Idaho Springs from enforcing its police court judgments against them; to restrain the enforcement of a penal ordinance; and to cancel the appeal bonds, made by plaintiffs, in appeal from said judgments to the county court. They will be referred to as plaintiffs, and plaintiff in error as the city. An ordinance ...
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THE parties are here aligned as in the trial court, and we will refer to them as plaintiff and defendant. On November 7, 1931, plaintiff filed his complaint in replevin to recover immediate possession of cattle described in chattel mortgage given by defendant to plaintiff on July 25, 1929, to secure payment of four notes aggregating $8,314. Plaintiff alleged that defendant was not taking proper ca...
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THE defendant in error, referred to as the school district, filed this suit in the district court against the plaintiff in error, referred to as the county, to recover one-half of the monies paid into the county treasury, from various courts in the county collected by said courts for violations of state laws as fines imposed for the punishment of crimes and misdemeanors between July 1, 1933, and t...
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THE employer plaintiff will be referred to as the company and defendants in error as claimant and the commission. It is not disputed that claimant was employed by the company at the time of the injury. The only evidence before the commission concerning the injury was that of Kruzic, the claimant. His testimony furnishes a sufficient statement of the facts, and in substance is as follows: "That on ...
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THE Colorado Tax Commission brings here for review a judgment which was entered by the district court in favor of the Denver Bible Institute when the commission stood upon the general demurrer interposed by it to the institute's complaint and overruled by the court. The judgment orders a refund of 1929 taxes and the striking of the institute's property from the tax roll. The case involves a claim ...
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THIS is a summary review of a claim under the Workmen's Compensation Act of Colorado. The claim was disallowed, except as to medical expenses which were awarded in accordance with the employer's medical plan adopted with the approval of the Industrial Commission. The claimant took the case to the district court, which affirmed the decision of the commission. The commission, through its referee, to...
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On March 11, 1926, A. Labenne, as first party, made a written contract with the Oklardo Oil Company, a corporation and H.L. Greenwalt, as second parties, to drill a well for oil and gas "to the second Deaner sand," which they estimated at 2,500 feet, for which the second parties agreed to pay as set forth in the contract. The well was completed to a depth of 2,495 feet, which complied with the wri...
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The facts in this cause disclose that plaintiff below, C.G.M. Featherstone, operated a cleaning and pressing shop through a managing agent named Noble, that plaintiff in error, defendant below, operated a wholesale dry cleaning plant, and that customarily plaintiff sent clothes gathered from his customers to defendant to be cleaned. He became indebted, under defendant's theory, to it in the sum of...
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This is an appeal from a judgment rendered by the district court of Seminole county in favor of the defendants in error, who were the defendants in the trial court, against the plaintiff in error, who was the plaintiff therein. Hereinafter the parties will be referred to as they appeared in the trial court. The plaintiff's original petition was filed on April 11, 1928. The cause of action attempte...
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This action was commenced by defendant in error (in the court of common pleas of Tulsa county) against plaintiff in error to recover for services alleged to have been rendered in the preparation of plans and specifications for the erection of a certain building and for superintending the construction thereof, and to establish and enforce a laborer's lien. Plaintiff in his petition alleges, in subs...
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This is an original action in this court to review an award of the State Industrial Commission entered in favor of Joe Sullenger, claimant, against H.C. Romines and the Southwestern Bridge Culvert Company, respondents. On September 24, 1931, claimant filed his first notice of injury on the Commission's form No. 3. Therein it was stated that on July 21, 1931, while employed by Henry Romines and th...
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On the 18th day of October, 1929, the district court of Carter county, Okla., rendered a judgment in favor of the defendant in error against the American National Bank of Ardmore, Okla., Frank Knappenberger, and C.F. Washburn, for the possession of certain described real estate, quieting the title thereto, and for the rental value of the use and occupation of the land. That judgment was based on t...
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This action arose in the district court of Carter county, wherein Emil Schroeder was plaintiff and Milwaukee Mechanics Insurance Company, a corporation, and Victory Insurance Company, a corporation, were defendants. The case was tried to a jury on March 7, 1930, and at the close of the plaintiff's evidence, the Milwaukee Company demurred to the evidence of the plaintiff, and the plaintiff moved fo...
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Harvey Roberts, a minor, by his mother and next friend, Mildred Roberts, as plaintiff, sued Tom Stockton, as defendant, in the district court of Okfuskee county, Okla., for damages; and recovered a judgment, based upon a jury’s verdict, for $50 actual damages and $950 punitive damages. The defendant appeals. The basis for plaintiff’s claim for actual and punitive damages is an alleged wanton an...
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The plaintiff, O.E. Boyd, sued the defendant, C.M. Moseley, sole owner doing business as National Loan Company, in the district court of Muskogee county for damages. The cause came on for trial before a jury, and at the conclusion of the evidence the trial court discharged the jury and rendered a judgment for plaintiff in the sum of $100, from which defendant appeals. The parties will be referred ...
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M.T. Beaman, plaintiff below, recovered in the district court of Cimarron county, Okla., by a verdict of a jury against O.W. Eden defendant below. O.W. Eden appealed, The petition in error specifies six assignments of error, but the defendant says in his brief: "Owing to the peculiar circumstances involved in the case at bar, it is neither necessary nor expedient to submit authorities or to argue ...
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This is an original proceeding in this court by the American Tank Equipment Company, petitioner, to review an award of the State Industrial Commission rendered July 11, 1933, in favor of P.C. Gray. The record discloses that on December 8, 1932, while working for petitioner, the claimant received a head injury above his right eye resulting in his temporary total disability. Said injury was occasio...
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This is an appeal from a judgment of the district court of Woodward county in favor of the defendant in error, the plaintiff in the trial court, and against the plaintiff in error, the defendant in the trial court, for an amount found to be due on a teacher's contract between the plaintiff and the school district. The parties will be referred to as they appeared in the trial court. The school dist...
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This action was instituted in the district court of Okmulgee county by the Oil Well Supply Company against A.C. Saint, L.A. Turner, Elwood Taylor, and Black, Sivalls Bryson, and a number of other defendants as an action for foreclosure of a materialmen's lien on an oil and gas mining lease. The Okmulgee Supply Corporation intervened in said action. A number of issues were involved and adjudicated...
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H.H. Mahler Company, a corporation, sued Nevin J. Diffenbach in the court of common pleas in Tulsa county for a balance due on account and to foreclose a lien. The cause was tried to the court, and a judgment was rendered for plaintiff, and the defendant has appealed. The parties will be referred to as they appeared in the trial court. It appears that plaintiff company was employed by defendant to...
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This original proceeding involves a review of an award of the State Industrial Commission. The only question for review is whether or not the injured employee was at the time of his injury in the employment of the Baker Ice Machine Company, petitioner herein. The facts present no substantial conflict. It appears that W- B. Mohr purchased an ice plant from the Baker Ice Machine' Company. This pl...
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This is an appeal from a judgment sustaining the demurrer of the defendants to the plaintiff's petition in an action brought by him to cancel a deed executed by him to Oklahoma county, Okla., which deed was dated December 16, 1929, and shows a consideration of $7,500, subject to a $1,500 mortgage, and covers 200 acres of land in Grady county, Okla. The plaintiff contends that the deed was void for...
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This is an appeal from the district court of Tulsa county, by Claude G. Rives, Jr., hereinafter referred to as intervener, against Mincks Hotel Company, Advance Operating Company, E.E. Chartier, I.S. Mincks, and Remington Rogers, hereinafter referred to as defendants, from an order of said court striking from the files an application of intervener to discharge a receiver. This is an issue growing ...
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In this case the plaintiff, Claude G. Rives, Jr., seeks a writ of mandamus against the defendant. Harry L.S. Halley, district judge of the district court of Tulsa county, Okla., to compel him to direct a receiver appointed by him to return and surrender to plaintiff certain property taken into possession under the order of the court. It is pointed out that an appeal was taken from the order of the...
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This is an appeal by the Advance Operating Company from an order granting an injunction and appointing a receiver in an action pending in the district court of Tulsa county filed by Henry L. Fist and E.E. Chartier against Mincks Hotel Company, I.S. Mincks, Remington Rogers, and Advance Operating Company. Said action was an action for the cancellation of a lease from the Mincks Hotel Company to the...
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The parties will be referred to as they appeared in the trial court. *Page 515 This is an action by L. Crawford against Mary A. Roush for the recovery of $1,270.58, alleged by plaintiff to be due him from defendant by reason of having performed his contract, and by reason of having performed extra labor and having furnished extra material in connection with a written contract to remodel and recon...
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1. Facts stated: On May 20, 1929, the defendants J.T. Elam and Lillie Elam, his wife, executed a promissory note for $3,192, payable to the Bank of Chelsea on August 8, 1929. On the same date, the defendants executed another note for $2,000, payable to the Bank of Chelsea on August 8, 1929. Both of the notes were secured by chattel mortgages and a mortgage on some real estate. The $2,000 note was ...
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This is an original proceeding before this court by Phillips Petroleum Company, a corporation, petitioner herein, to review an order and award of the State Industrial Commission made and entered on July 1, 1933, in favor of the claimant, Chas. Z. Renegar. Said order and award appears in its material parts as follows: "(1) That the claimant herein, on and prior to July 15, 1932, was in the employme...
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This appeal involves the title to 60 acres of land allotted to Arlington Jones, a half-blood Cherokee Indian, who died intestate, April 25, 1906, in what is now Craig county, leaving as his sole and only heir at law, his father, Levi Jones, a full-blood Cherokee Indian. This land is in Nowata county. On May 8, 1907, Levi Jones executed a deed conveying the land here involved to one J.F. Madison, a...
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The plaintiff in error, hereinafter called the defendant, was convicted of the crime of receiving stolen property and his penalty fixed at a fine of $25, and he appeals. The theory of the state is that the defendant, for a consideration, received from one Gaston Van Ross a trailer which had been stolen from R. G. Pearce; that the defendant bought the trailer knowing at the time he purchased the sa...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of maintaining a public nuisance and sentenced to pay a fine of $500 and to be imprisoned in the county jail for six months. Motion for new trial was filed, considered, overruled, and defendant appeals. The testimony on behalf of the state shows that on July 5, 1930, the officers searched 15% West California avenue,...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of rape in the first degree and sentenced to serve a term of 15 years in the state penitentiary. Motion for new trial was filed, considered, overruled, and defendant appeals. Chester Davis, a witness on behalf of the state, testified in substance as follows: "I live south and east of Erick; was in Erick on...
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This is here upon an application to have the statement of facts remanded to the trial court for the purpose of having the memorandum decision and affidavits presented by appellant on his motion for a new trial incorporated in the statement of facts, which was served, filed and certified in due and timely manner, and certified by the trial judge. The application is based upon Rule of Court IV, 159 ...
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On October 4, 1930, a day or so subsequent to the death of his wife, John Forsman, an illiterate farmer eighty or eighty-one years old, residing in Pacific county, executed his will, under the terms of which he gave all of his property to his two children (an unmarried son and a married daughter), share and share alike. The daughter, who resided at Portland, Oregon, remained with her father approx...
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This action was brought by plaintiff to recover from defendants damages for breach of a written contract. The case was tried to the court sitting with a jury. A verdict was returned in favor of plaintiff. Motions for judgment notwithstanding the verdict, or in the alternative for a new trial, were made and overruled. From the judgment entered upon the verdict, this appeal is taken. The written con...
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This action was brought to recover damages for personal injuries. The cause was tried to the court without a jury, and resulted in findings of fact from which it was concluded that there was no liability as to the defendants G.W. Emerton and wife, but that recovery could be had against the defendants N.P. Oman and wife in the sum of seventeen hundred dollars. Judgment was entered dismissing the ca...
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This is an action for damages for personal injuries resulting from a collision between an automobile and a pedestrian upon a public highway. Trial by jury resulted in a verdict for the plaintiff. Motions for judgment notwithstanding the verdict and, in the alternative, for new trial having been denied, judgment was entered, from which defendant has appealed. The questions raised by the assignments...
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BEALS, C.J., and TOLMAN, J., dissent. This action, instituted by John C. Thornton and wife and tried to the court and jury, is for damages resulting from personal injuries received *Page 3 by Thornton in two distinct, but nevertheless closely related, automobile accidents. Challenges to the sufficiency of the evidence and motion for nonsuit, made at the conclusion of respondents' case, were denie...
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This action was brought to recover rent for a store building. The cause was tried to the court without a jury, and resulted in findings of fact from which it was concluded that one of the defendants was liable. Judgment of nonsuit was entered as to the West Dependable Stores of Oregon and Dan A. West individually. As to the West Dependable Stores of Washington, judgment was entered against it in t...
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HOLCOMB, J., dissents. The basic facts in this case are identical with the facts in the case of State ex rel. Showalter v. Cook, 175 Wash. 364,27 P.2d 1075. Defendant Wiley is assessor of Grays Harbor county. Pursuant to Rem. Rev. Stat., § 11220, he forwarded to the state board of equalization an abstract of the assessment roll for Grays Harbor county, which showed the assessed valuation of all th...
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An action was brought by Fanny G. Troyer against her husband, Mervyn B. Troyer, for divorce. On March 21, 1930, in consonance with its findings that the complainant was entitled to an absolute divorce, entitled to the custody of the two minor children of the parties, and "That the plaintiff and defendant own certain property as set forth in the pleadings herein; that on the 19th day of March, 1930...
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This action was brought to recover damages which resulted from the malpractice of a physician and surgeon. The trial resulted in findings of fact from which the court concluded that the plaintiff was entitled to recover. Judgment was entered against the defendants in the sum of four thousand dollars, from which they appeal. *122 The facts are these: The appellant C. W. Lane is a physician and...
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On January 16, 1931, the Multachrom Tubelight, Inc., a domestic corporation, of which Henry J. Lowdon was president, borrowed thirty-five hundred dollars, on its thirty-day promissory note, from the Bank of California, National Association. *Page 131 Contemporaneous with the making of the loan, the bank obtained from the borrower a written general loan and collateral agreement obligating the borr...
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The plaintiffs, corporations and individuals engaged in the business of furnishing telephone service, brought this action to restrain the state tax commission from enforcing upon and collecting from them the excise tax provided for in chapter 191 of Laws of 1933, p. 869 (Rem. 1933 Sup., § 8326-1 et seq.). A general demurrer to their complaint was interposed and sustained. The plaintiffs elected to...
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John Powers, claiming to have sustained an injury on June 10, 1931, while engaged in extrahazardous employment, filed a claim for compensation with the department of labor and industries. The supervisor of industrial insurance, after investigation by the department, rejected the claim, "upon the ground that there is not sufficient proof of an accident in the course of employment." Claimant appeale...
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This action was instituted for the purpose of obtaining a decree setting aside a sheriff's deed and other proceedings which occurred subsequent to the entry of a decree in defendants' favor foreclosing *Page 83 a mortgage against a tract of real estate owned by plaintiffs. After a trial to the court, findings of fact and conclusions of law were entered in defendants' favor, followed by a decree d...
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The Aberdeen branch of "The Salvation Army," a California corporation authorized to carry on its activities within the state of Washington, was named as the assured in an "automobile policy" issued by defendant, Standard Accident Insurance Company of Detroit. This policy protected the assured against certain liabilities which might be incurred by reason of the operation of a Ford delivery truck ow...
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This appeal is from a judgment in favor of the respondent upon a promissory note executed by appellants. The note bore date November 6, 1931, and was payable thirty days after date to the order of L.A. Savidge. The note was indorsed in blank by the payee, Savidge, and delivered to O.W. Ament, who, on November 12, 1931, delivered it to respondent *Page 63 bank, with other notes, as collateral for ...
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This is an appeal from judgment of non-suit entered pursuant to motion of defendants at the close of plaintiff’s ease. Plaintiff asked an accounting of moneys received by defendants from the distribution and sale of motion picture films in which the plaintiff corporation claimed an interest by reason of the assignment to it of the beneficial rights of one of the parties, and the asserted ratifica...
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The determination of this appeal rests upon our consideration of the main issue presented, to wit: Whether covenants in restraint of trade, contained in the contract which forms the basis of this action, render said contract illegal and void, in whole or in part, under sections 1673, 1674 and 1675 of the Civil Code. Section 1673, supra, declares that "Every contract by which anyone is restrained f...
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Pursuant to stipulation between counsel for the respective parties these appeals have been presented by a single set of briefs, and are to be treated as if consolidated; the entire records and evidence to be considered by the court as being properly in the record and before the court in each case. In each of these proceedings the defendants constitute the membership of the Board of Education which...
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This action was begun by the plaintiff to recover of and from the defendant certain moneys received by the defendant from the Shell Oil Company, royalties belonging to the plaintiff by reason of her ownership in and to certain premises or units in and to certain premises operated by the Shell Oil Company in the extraction of oil and other hydrocarbon products. The entire tract of land included 20 ...
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The defendant was charged with the murder of her husband by means of the use of a knife. She was tried by a jury. After nearly thirty hours of deliberation the jury returned into court and upon inquiry as to whether a recommendation for probation would be recognized in the event they found a verdict of manslaughter, they were informed that "the recommendation of the jury for mercy or anything of t...
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Plaintiff instituted this action to recover compensatory damages for personal injuries alleged to have been caused by the negligence of defendants. Upon the trial of the action plaintiff presented evidence tending to sustain the allegations of his complaint and rested his case. *Page 451 The defendants thereupon moved the court for a nonsuit, which was granted. Judgment in favor of defendants was...
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[1] The pertinent facts as they appear in the brief filed by the appellant, and with which statement of facts "respondents agree", are as follows: "The defendants filed a demurrer to the complaint, and a demand for a change of venue, accompanied by an affidavit of merits and a notice of motion. The motion was noticed for Monday, the 7th day of April, 1930, but was continued from time to time, and ...
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The respondent has moved this court to dismiss the appeal taken by appellant from a judgment rendered by the trial court in favor of respondent or to affirm the judgment of the trial court. The motion is presented in accordance with the provisions of section 3 of Rule V of the Rules for the Supreme Court and the District Courts of Appeal. The grounds of the motion are that the appeal has been take...
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This is an appeal by the defendant from a judgment in favor of plaintiffs rendered by the trial court and an attempted appeal from the court's order denying a motion for a new trial. The action was instituted by plaintiffs to recover damages for the death of their minor son, which was alleged to have been caused by the gross negligence and wilful misconduct of defendant in operating an automobile ...
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This is an appeal from a judgment of nonsuit in favor of defendants and against the plaintiff. Upon the filing of appellant's opening brief respondents (defendants below) moved the dismissal of the appeal or the affirmance of the judgment. An automobile with chauffeur was hired and the hirer's valet took the wheel with the hirer's consent. The vehicle upset and killed the hirer. His mother brought...
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This appeal is from an order of the trial court granting a motion for a new trial in a case where a jury had awarded plaintiff damages in the sum of $2,500 for injuries received in an automobile accident. Appellant, conceding that the trial court is vested with broad discretion in ruling upon such a motion (2 Cal. Jur. 27), argues that in this case there was such an abuse of discretion as to warra...
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is an appeal from a judgment entered in an action based upon a claim and delivery, instituted by respondent herein, in which plaintiff obtained judgment for the possession of certain furniture. It is the contention of appellants that the issues raised in the instant case were all settled in a former divorce action between the parties and are therefore res judicata. It appears that there was...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 387 On September 20, 1928, judgment was entered against the defendant convicting him of the crime of burglary. From that judgment no appeal was taken. Thereafter the defendant served notice that he would move the court for an order to annul, vacate and set as...
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Elizabeth Arletta Marrs brought action against her husband, William Lester Marrs, the petitioner here, for separate maintenance and support; the defendant husband answered and filed a cross-complaint for divorce. The cause was heard March 20, 1933, and no evidence having been offered on behalf of plaintiff and cross-defendant, an interlocutory decree of divorce was granted to defendant and cross-c...
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Defendant was accused by an information filed by the district attorney of Frenso County of the ownership *Page 535 and possession by an ex-convict of a firearm capable of being concealed upon his person, with appropriate allegations of prior convictions of felonies. Upon arraignment he entered a plea of not guilty to the charge and admitted three prior convictions. Fifteen days later he again app...
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This is an appeal from a judgment awarding plaintiff and respondent damages, and a preliminary injunction which restrained appellants from turning waste or irrigation water over the lands of plaintiff. The properties here involved were owned originally by Thomas W. Guthrie, who divided his holdings in parcels and conveyed a portion thereof to his daughters, among whom were the respondent and the a...
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In Banc. PEREMPTORY WRIT ALLOWED. *Page 440 This is a mandamus proceeding brought in this court to compel the secretary of state to accept and file the declaration of candidacy of W.A. Ekwall, a judge of the circuit court for Multnomah county, for the office of representative in Congress for the third congressional district of this state. Judge Ekwall, the relator, was elected to the office of ci...
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In Banc. Harry R. Riley was convicted of murder in the first degree, and he appeals. AFFIRMED. REHEARING DENIED. On Monday, October 31, 1932, defendant shot and killed his wife, Hilda Riley, at Burns in Harney county, Oregon. He was indicted, tried and convicted of murder in the first degree and sentence of death pronounced. Defendant appeals. The record discloses that appellant was married to Hil...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 463 Action in the nature of an action for money had and received, by the Green Mountain Log Company against the Columbia Nehalem River Railroad for an overcharge of freight rates covering plaintiff's logs hauled over the logging road of defendant between the...
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Action by Leona Murray against B. Helfrich. Judgment for defendant, and plaintiff appeals. AFFIRMED. This is an action for personal injuries. Judgment for defendant and plaintiff appeals. *Page 603 The plaintiff alleges in substance that while riding with, and as a guest of defendant, she was injured by reason of the gross negligence of defendant and asks for compensation for such injuries. Defen...
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The defendant, Midkiff, was prosecuted and convicted under an information filed in the superior court of Maricopa county, on May 5, 1933, by the county attorney, in words and figures (omitting the formal parts) as follows: "The said H.D. Midkiff on or about the 24th day of February, 1933, and before the filing of this information *Page 325 at and in the County of Maricopa, State of Arizona, did t...
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J. Carroll Power was convicted of the crime of incest, and has brought the case before us for review. There are several assignments of error, but only three questions for our consideration, which we shall take up in their order. The first is that the court erred in failing to dismiss the prosecution on the ground that the defendant was not tried within 60 days of the date of the indictment, as pro...
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A writ of certiorari was issued on petition of plaintiff to review an order of the district court of Millard county releasing certain property from attachment in the case of Mary E. Ray v.E.G. Cowling now pending in that court. The petition alleges that the district judge exceeded his jurisdiction in making an order releasing 20 tons of hay and *Page 501 840 pounds of alfalfa seed from attachment...
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I concur in the result reached in the opinion by Mr. Justice ELIAS HANSEN. ...
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Respondent has moved to dismiss the appeal on the ground that the following order, from which it is taken, is not appealable: "ORDER "A motion for nonsuit having been made at the close of plaintiff's evidence herein and having been taken under advisement by the court, and the court having considered *Page 155 the matter hereby orders that said motion for nonsuit so ma...
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On October 20, 1930, judgment was entered in the district court in favor of the plaintiff, the respondent here, and against the defendant, appellant here. It will be convenient to refer to the parties as plaintiff and defendant. On October 25, 1930, the defendant filed notice of motion for a new trial. On January 12, 1931, defendant perfected an appeal from the judgment by serving and filing notic...
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This action was instituted to recover on a surety bond, given upon the issuance of a temporary restraining order in another action. December 27, 1922, one R. A. Bowman, commenced an action against respondent, Tom Beech, and one L. R. Adams. The action arose out of a disagreement over a contract for the purchase and sale of a number of sheep, then in the possession of respondent and Adams. At the t...
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The opinion of the court was delivered by This was an action by plaintiff for a sum of money due on two promissory notes executed by defendant, and a cross action by defendant for a larger sum of money alleged to be due him as commission on the sale of plaintiff’s f$rm implements. Plaintiff’s claim against defendant was established without much dispute, and judgment was awarded in its behalf. The ...
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The opinion of the court was delivered by Defendant, George Post, was convicted of murder in the second degree, and appeals. About midnight of Friday, January 6, 1933, defendant shot and killed Forrest Woodring. That night defendant’s wife, Beulah Post, who was allowing Forrest to display an amorous disposition toward her, was brutally beaten. Forrest was thirty-three, and single. Mrs. Post was th...
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The opinion of the court was delivered, by The action was one by a school teacher, who was dismissed before her term of employment expired, to recover, from the school district which employed her, salary for the portion of the term remaining after dismissal. The verdict and judgment were for plaintiff, and the district appeals. The statute pursuant to which plaintiff was dismissed reads as follow...
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The opinion of the court was delivered by This is an action to foreclose a mortgage. From a judgment allowing claims superior to it plaintiff has appealed. The facts, briefly stated, are as follows: In December, 1924, Hernandez and wife owned real property in Arkansas City which they mortgaged to a building and loan association. This mortgage is conceded to be a first lien on the property. About ...
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The opinion of the court was delivered by This is a ruling upon the third petition of the appellee for a rehearing. And after a careful consideration thereof and of the authorities therein cited, as well as further consideration of the first and second petitions for rehearing filed by the appellee, the court adheres to its last decision in the case of Stalcup v. Stalcup, 137 Kan. 447, 21 P. 2d 401...
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THIS is a workmen's compensation case. Plaintiff in error the C. S. Card Iron Works Company is hereinafter referred to as the company, plaintiff in error American Employers' Insurance Company as the insurer, plaintiff in error the Industrial Commission of Colorado as the commission, and defendant in error as the claimant. While claimant was employed by the company he suffered a strained back. The ...
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PLAINTIFF in error is hereinafter referred to as Amos and defendant in error as the company. The company sued Amos to recover a balance of $2,356.93 and interest due on sales of gasoline and motor oil. The answer was a general denial and two counterclaims. A motion to strike the counterclaims was sustained and amendments, differing in no material respect *Page 436 from the pleadings stricken, wer...
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THESE parties are hereinafter referred to as Schwartz and Weiner. Weiner, alleging that he had been employed by Schwartz to assist in the purchase of an apartment house, that he did so, that the property was purchased, and that *Page 253 he had been promised compensation for his services but that payment had been refused, sued for $875 as the reasonable value thereof. Schwartz denied generally, a...
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delivered the opinion of the court. This is an action for damages arising out of an automobile collision. There are no pleadings, the first trial being before a justice of the peace. On appeal to the county court the trial was de novo, a jury was duly waived, and evidence taken. Judgment went against the plaintiff company, which is the plaintiff in error, both on its claim against the defendant...
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DAVID Allan was operating the Crown mine, and was insured by the Employers Mutual Insurance Company. John H. Gettler was working in the mine. The Industrial Commission found that on March 15, 1933, Gettler sustained an accident arising out of and in the course of his employment; that his injury consisted of a back strain and was temporary. It awarded to him as compensation $12.74 per week from Mar...
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The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days, and appeals. The record in this case was filed in this court September 25, 1933; no brief has been filed in support of the defendant’s assignment of errors. A careful examination d...
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Alton Williams filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the sheriff of Oklahoma county, that no charge had been filed against him and no warrant issued, and that he had been in custody more than six days. Stanley Rogers, sheriff of Oklahoma county, filed his response stating that he was holding petitioner as a fugi...
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In Banc. Suit by Frank A. Heitkemper against R.W. Schmeer and wife and others. From a decree in favor of the plaintiff, the defendants appeal, and the plaintiff cross-appeals. MODIFIED. REHEARING DENIED. This suit was commenced to enjoin the violation of an alleged covenant in a trust agreement against the erection of an apartment house in a residential district. It arose under the following facts...
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The opinion of the court was delivered by The action was one by plaintiff, a broker, for a balance due for purchases and sales of grain on defendant’s account. The trial was by the court, which found generally for plaintiff, and rendered judgment accordingly. Defendant appeals. The answer denied correctness of the account, but the opening statement of counsel for defendant waived trial of this iss...
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