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All Reporters → wl → Volume 1909
Opinions in wl Volume 1909
Page 203
In 1871 the then owners of a tract of land crossed by the Wahoo creek by ad quod damnum proceedings in the district court for Saunders county acquired the right to flow the lands of upper proprietors so far as might be necessary in constructing and maintaining a dam 20 feet in height across said stream and upon the land of the petitioners. A dam and gristmill were constructed, and the mill thereaf...
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Page 233
We find merit only in appellant’s second point. The guidelines indicated a sentence of community control or twelve to thirty months incarceration. However, appellant was sentenced to both eighteen months incarceration and eighteen months community control. This is a departure sentence, requiring written reasons for departure. Garcia v. State, 539 So.2d 23 (Fla.2d DCA 1989). There were no written r...
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Page 237
110 B.R. 628 (1990)
In re Roger A. DIQUINZIO, Helen J. Diquinzio, Debtors.
Bankruptcy No. 89-10780.
United States Bankruptcy Court, D. Rhode Island.
February 14, 1990.
John Rao, Rhode Island Legal Services, Inc., Woonsocket, R.I., for debtors.
Larry Dub, Law Office of Larry Dub, Pawtucket, R.I., for ITT Financial Services.
John Boyajian, Boyajian, Harrington & Richardson, Providence, R.I., Tr...
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MEMORANDUM
The plaintiff filed this action on July 3, 1989 to recover for payments it was required to make as the result of insurance policies issued to Pasargad Carpets of Isfahan, Inc. (Pasargad), Policy No. 42 UUCPC 555 and Schmeltzer, Aptaker & Sheppard, P.C. (Schmeltzer), Policy No. 42 UUCZJ 2521. The case came before the Court for a non-jury trial on March 27-29, 1990. This Memorandum const...
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Page 288
In re Fernandez, Jesus; — Defendant(s); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. KA89 0357; Parish of St. Mary, 16th Judicial District Court, Div. “D”, No. 121339. Prior report: La.App., 557 So.2d 1170. Denied....
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Page 289
567 So.2d 1122 (1990)
STATE of Louisiana
v.
Samuel ROBINSON.
No. 90-K-1491.
Supreme Court of Louisiana.
October 19, 1990.
Denied.
...
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delivered the opinion of the court: This case arises under a jurisdictional act approved February 7, 1907 (34 Stat. L., 2408), as follows: AN ACT For the relief of Esther Rousseau. “Re it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That *7jurisdiction be, and hereby is, conferred upon the Court of Claims to bear, determine, and render f...
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Page 871
delivered the opinion of the court: This is an action to recover salary in the settlement of a deceased post-office inspector’s official accounts. No useful purpose will be served by making specific findings, because there is no right of appeal to the Supreme Court of the United States. But within the limits of this opinion the facts may be stated sufficiently to afford an intelligent comprehensio...
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delivered the opinion of the court:
The defendants demur generally, “that the petition does not allege facts sufficient to constitute a cause of action,” and specifically that the facts alleged in said petition are insufficient “ to constitute a cause of action as to any one of the items therein contained.”
The material averments of the petition are that the claimants are the owners of 80 acres of...
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delivered the opinion of the .court: This class of cases has been so often disposed of by this ■and the Supreme Court that but little room for contention by the accounting officers of and the attorneys for the Government are left open for controversy. The claim herein is so nearly the case of Marvin v. United States, decided by this court April 20, 1908, and affirmed on appeal by the Supreme Court...
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Page 874
delivered the opinion of the court: • The claimant, a captain in the Maryland National Guard, of fifteen years’ service in various grades, claims longevity pay based on said service for the period he served with his organization, at the request of the governor of said State, with a part of the Regular Army “in the encampment, maneuvers, and field instruction” authorized by section 15, act of Janua...
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delivered the opinion of the court: This is the suit of an officer of the civil war claiming pay as captain from the date he joined for duty and was enrolled up to and until the date of his actual muster into the service of the United States. The act of February 24, 1897 (29 Stat. L., 593), reads: “That any person who was duly appointed or commissioned to be an officer of the volunteer service dur...
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Page 876
delivered the opinion of the court: There is but one question involved in this suit, and tha,t is whether or not the plaintiff is entitled to pay for services *60alleged to have been, rendered by him as a special assistant United States attorney for the central district of the Indian Territory during the months of July and August, 1906. The findings show that he was first appointed to said office ...
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delivered the opinion of the court: This is a suit to recover the salary claimed to be due to the claimant as tinner at the Indian school at Carlisle, Pa. *65It appears that after having been duly certified by the Civil Service Commission the claimant, on the 16th day of June, 1902, was regularly appointed by the Acting Commissioner of Indian Affairs to the position of tinner at the place named ab...
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delivered the opinion of the court:
This action involves the question whether the overflow of the lands of the claimant’s testator during stages of high water, superinduced by the wave and current resulting from the dam constructed by the Government across the Kanawha River at Lock No. 3, is a taking within the meaning of the fifth amendment of the Constitution.
What constitutes a taking under the...
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delivered the opinion of the court: The question for decision arises on the defendants’ demurrer to the petition on the ground that the facts averred therein are not sufficient in law to constitute a cause of action. Although the claimant omits to set forth in his petition, as required by the rules of the court, his letter of appointment and the action of the various departments having to do with ...
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Page 880
delivered the opinion of the court: Plaintiff was appointed from civil life an assistant surgeon in the navy with the rank of lieutenant (jurior grade) July 18,1900, and served as such during the period covered by the claim for which he sues. September 21,1903, he was ordered to report at the Mare Island Navy-Yard, San Francisco, October 5 following for examination preliminary to promotion to the ...
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Page 881
delivered the opinion of the court:
Plaintiff is the widow of Nathaniel H. McLean, who sues, in her own right and not in a representative capacity, under a special act of Congress. .
Nathaniel H. McLean entered the Military Academy in 1844. He rose through various ranks until, in 1863, he attained the rank of major, and was made assistant adjutant-general in the Regular Army. While so serving he r...
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delivered the opinion of the court:
The court is asked to construe its decree herein respecting the right and authority of the Secretary of the Interior or of the Treasury Department to apply any part of the money appropriated to pay said decree to the payment of fees to the attorneys of the Cherokee Nation after the Supreme Court had affirmed the decree in the name of the Cherokee Nation, though ...
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delivered the opinion of the court: The claimant by his bid and contract obligated himself to furnish all necessary labor and material therefor and to construct within eighty-five days from the date of notice of the award of the contract (October 17, 1901) the heating, plumbing, and gas piping of additions and improvements to the hospital at Fort Hancock, N. J., for the aggregate consideration of ...
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Page 884
delivered the opinion of the court: This suit, which involves facts only, was brought under the following special act of Congress: “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That *160the claim of S. W. Peel, of Bentonville, Arkansas, for legal services rendered and expenditures had for the Choctaw Nation of Indians of the India...
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Page 885
delivered'the opinion of the court: This claim has. been certified to the court, pursuant to the provisions of section 1063 of the Revised Statutes of the United States, as one involving controverted questions of law where the decision will affect a class of cases and furnish a precedent for the future action of the accounting officers of the Treasury. It is presented by an assignee for repayment ...
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Page 886
delivered the opinion of the court: This case was decided by the court June 10, 1909 (44 O. Cls., 549), and was again presented February 2,1910, upon a motion for a new trial and for amendment of the findings of fact. We have given the motion due consideration, and again decide that the facts are therein correctly stated; but upon more mature reflection (although there is in the minds of some memb...
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Page 887
delivered the opinion of the court: • The claimant herein, who, at the time the services were rendered for which he brings this suit, was a captain in the United States Revenue-Cutter Service, and was detached from his vessel December 4, 1907, by an order issued by the Secretary of the Treasury, which directed him to proceed to Europe to investigate and report upon certain trade relations in the i...
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Page 888
delivered the opinion of the court: This is a claim'for the destruction of hay by the defendant Sioux Indians on the 20th day of August, 1875. The place of the depredation was a few miles from the Red Cloud Agency in Nebraska, located about 5 miles from Dakota on the north and the same distance from Wyoming on’the west. The claim was never presented to the Interior Department nor to Congress nor t...
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delivered the opinion of the court:
This case in some respects has had a checkered career. It has been under consideration by the court for some time, and because of its peculiar complications and close relation to the McLaughlin case has involved an extended and detailed examination into the records of both cases. This has been tedious. The case is now before us upon the defendants’ motion to ame...
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delivered the opinion of the court.
This is a suit to recover damages for an alleged breach of contract. The claimants, Normile, Fastabend & McGregor, copartners, entered into a written agreement to construct a lock and dam in the Yamhill River in the State of Oregon, a keeper’s dwelling house and necessary buildings appurtenant thereto, and do a certain amount of dredging in the channel of said r...
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Page 891
delivered the opinion of the court: George Herbert Melvin, the claimant herein, was on June 13, 1904, duly appointed a midshipman at the United States Naval Academy. On February 6, 1906, the claimant was dismissed from the academy and from the naval service of the United States. Claimant’s dismissal was the result of a charge of hazing, preferred against him by the superintendent of the academy. T...
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delivered the opinion of the court. The questions now presented relate to the enrollment of those Eastern Cherokee Indians, parties to the treaty of 1835-36 (7 Stat. L., 478, 488) and 1846 (9 Stat. L., 871), who are entitled to share in the money appropriated by Congress to satisfy the judgment and decree entered by the court in favor of the Cherokee Nation May 18, 1905, as modified May 28, 1906, ...
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Page 894
delivered the opinion of the court: This is the claim of the State of Nevada for reimbursement under the act of July 27, 1861 (12 Stat. L., 276), for expenses claimed to have been “properly incurred by said State ” under said act in “ enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding in suppressing the present insurrection against...
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delivered the opinion of the court: The claimants herein file a motion for a new trial and amendments to the findings of fact, on the grounds that the findings and judgment of the court heretofore rendered are contrary to the law and the evidence. The special act of Congress authorizing the court to hear, determine, and adjudicate, as justice and equity shall require, the claims of the Sac and Fox...
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delivered the opinion of the court: This is a claim for rent of and damage to a two-story frame hotel building owned by the claimant in the town of Macclenny, Baker County, Fla., by reason of said hotel being used as a yellow-fever hospital in the summer and fall of 1888. The amount claimed in the bill is $10,000. The evidence consists of testimony of the claimant and five witnesses taken at said ...
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delivered the opinion of the court: The ruling of the acting comptroller in disallowing this claim was, for the reasons stated by him, correct. Time, as stated in the instructions to bidders, was an essential feature of the contracts, and for that reason the Government was willing to pay more for the work if completed within 50 working days than they were if completed within 70 working-days. Bidde...
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delivered the opinion of the court:
The claims in this suit grow out of a collision between the United States army transport Sumner, outward bound, and a barge or lighter owned and operated by the Southern Railway Company and moored at its dock, which occurred in the Norfolk (Ya.) Harbor March 17, 1900. The claims were referred to this court for adjudication by the omnibus claims act of February 2...
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delivered the opinion of the court:
This is a suit by the plaintiffs to recover $5,578.89, the amount of certain import duties collected from them by the United States military collector of customs at Manila upon a cargo of rice shipped from Saigon, China, to the island of Cebu, Philippine Islands, in Januarjq 1899, after the signing of the treaty of peace between Spain and the United States, but ...
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delivered the opinion of the court. This suit is brought for the recovery, under the act of June 27, 1902 (32 Stat., 406), of the sum of $4,286.31, collected by the United States as an inheritance tax under the provisions of sections 29 and 30 of the act of June 13, 1898, commonly known as the Spanish war revenue law (30 Stat., 466), upon the residuary estate bequeathed by the will of the late Wal...
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delivered the opinion of the court: This is a suit to recover an alleged balance due upon a written agreement for attorneys’ fees. The jurisdiction of the court rests upon a special act of Congress, which reads as follows : “ That jurisdiction is hereby conferred upon the Court of Claims to hear and determine, the claim for services rendered by Clement N. Vann and William P. Adair, late of the Ind...
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delivered tbe opinion of the court: . Petitioner, as an honorably discharged veteran of the civil war, was appointed to be a clerk in the pension agency at Indianapolis. Without delinquency or misconduct on his part, but in consequence of the reduction of the force of the office under a law limiting the force, he was removed from his position without the filing of written charges against him. The ...
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delivered the opinion of the court:
This is the claim of a letter carrier for thirty days’ pay withheld from him while suspended from duty by the postmaster at Huntington, W. Va., with the subsequent approval of the First Assistant Postmaster-General. The claimant was suspended February 15, 1900, and while not in terms without pay the First Assistant Postmaster-General on February 29, 1900, in his...
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Page 904
delivered the opinion of the court: This is a claim arising under a contract entered into by the claimant with the Government September 19, 1902, whereby he agreed to “ furnish all material, labor, machinery, and appliances required in sinking,” on or before December 24, 1902, in accordance with the specifications therefor and to the “ entire satisfaction ” of the defendants’ contracting quarterma...
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delivered the opinion of the court:
This is a demurrer to claimant’s petition. The claimant, Liliuokalani, was formerly Queen of the Hawaiian Islands. Her cause of action is predicated upon an alleged “ vested equitable life interest ” to certain lands described in the petition, known as “ crown lands,” of which interest she was divested by the defendants. It is conceded that the absence of such a...
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delivered the opinion of the court. The plaintiffs are ten tribes of Indians, known as the Confederated Bands of the Ute Indians (referred to hereinafter as the Ute Indians), who sue herein for an accounting to them under the agreement made by them with the defendant by an act of Congress approved June 15, 1880 (21 Stats., 199). The same claim, known as Congressional case No. 11248, was referred t...
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delivered.the opinion of the court:
This action is to recover $276.48 deducted by the accounting officers as liquidated damages for one hundred and eight days’ delay of the claimant in the performance of its contract with the Government for the delivery of a certain turbo-generator at Watervliet Arsenal, N. Y.
The contract was entered into August 29, 1906, between the claimant company and the Unit...
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delivered the opinion of the court:
The Postmaster-General transmits to the court under Be-visecl Statutes, section 1063 and section 2 of the act of March 3, 1883, for adjudication, the claim of a letter carrier in the post-office at Washington, D. C., for work alleged to have been performed by him in excess of eight hours per day.
*480The claimant voluntarily appears and files his petition herein...
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Page 909
delivered the opinion of the court: The claimant herein seeks the pay of a colonel from November 25 to December 17, 1861, on the following state of facts: On November 25,1861, the claimant was commissioned by the governor of Ohio as colonel of the Sixty-sixth Ohio Yol-*486unteer Infantry, then in process of organization at Camp McArthur, near Urbana, Ohio. At the time the claimant was commissioned...
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delivered the opinion of the court:
The claimant corporation at all the times hereinafter mentioned was engaged at the city of New York and other places in the manufacture and importation of cigars. In the year 1902 it manufactured 308,950 cigars in the island of Porto Bico, which it brought to the United States and landed at the city of New York. These cigars were labeled with the brand “ El Falc...
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delivered the opinion of the court: The plaintiff in this suit is an assistant surgeon in the navy who files a claim against the United States for 10 per cent increase of pay for shore duty beyond seas and commutation for quarters from November 16, 1900, to March 16, 1901, inclusive, a period of four months and eleven days, amounting to $168.84. Plaintiff was attached to the U. S. S. Tosemite at t...
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delivered the opinion of the court:
This is a motion by defendants to dismiss plaintiff’s petition on the grounds (1) that the corporation plaintiff never filed nor intended to file the petition, or petition of any kind, under and in accordance with the terms of the jurisdictional *499act set forth in the margin; a (2) that the original contractor, the Globe Works, has never been and is not now re...
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Page 913
delivered the opinion of the court: The claimant herein was duly appointed by the Public Printer in the Government Printing Office at $6.40 per diem *514in what is known as the classified service. On May 14,1903, he was suspended from the position of assistant foreman of the branch bindery of that office until such time as final action should be taken in the case, of which he was advised, together...
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delivered the opinion of the court:
The question here presented arises on the claimants’ demurrer to the fourth and fifth paragraphs of the defendants’ answer as to whether the amount retained by the Government, and the amount due for work performed is liquidated damages or penalty.
The claimants, by a written contract entered into July 31, 1899, with the Government through the Corps of Engineers,...
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Page 915
delivered the opinion of the court: The claimant in this case brings a suit to recover the sum of $140 alleged to be due to him during an authorized leave of absence with full pay for the period of six weeks as a nurse on the Isthmus of Panama, from August 17, 1906, to and including September 29, 1906, at the rate of $75 per month. It appears from the record in the case that claimant was appointed...
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Page 916
delivered the opinion of the court: The per diems charged herein are new; that,is to say, they do not directly fall within Finnell's case (185 U. S., 236); Owen’s case (41 C. Cls. R., 69), or the case of Marvin v. United States (212 U. S., 275), for the reason that in those cases different statutes were involved. The case at bar depends upon the meaning and intent of sections 6 and 9 of chapter 35...
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delivered the opinion of the court: The claimants, by the terms of the contract set forth in the findings, agreed to furnish and deliver to the Quartermaster’s Department, United States Army, Philippine Islands, for the fiscal year ending June 30, 1905, 70,000 tons of Wallsend coal, from Australia in deliveries ex ship Manila Bay, at the rate of 8,000 tons per month, and at certain other places in...
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delivered the opinion of the court: The claimant company, by a written contract with the Government under date of May 24, 1905, obligated itself to furnish all appliances, material, and labor necessary therefor and to build 100 feet of Chanoine dam, certain bear-trap foundations, a Chanoine weir, three piers and abutment, etc., at Dam No. 3, Ohio River, below Pittsburg, the work to be completed on...
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Page 920
delivered the opinion of the court:
Two questions, one of fact and one of law, are raised in this case.
The issue of fact relates to loyalty to the United States, from the beginning to the close of the civil war, of William Hunt (now deceased), who, at the time of the Mississippi ordinance of secession, was engaged in the business of planting in Washington County in that State. Mr. Hunt was born a...
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delivered the opinion of the court: .Congress, by an act approved June 21, 1866 (14 Stats., 68), appropriated $368,548.37 to reimburse the State of West Virginia for enrolling, equipping, and paying such state forces as the State had called into its military service after June 20, 1861, for the prosecution of the war beginning just before that date. The act excluded allowances for troops who did n...
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MEMORANDUM OPINION On February 10, 1996, the State filed a forfeiture action against a 1990 Honda Accord seized by Oklahoma City Police on January 16, 1994. Appellant Kristi Coulter, the owner of the vehicle, appeals the trial court’s order granting the State’s summary adjudi*377cation request and ordering forfeiture. She claims only that this forfeiture action constitutes double jeopardy because ...
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Order on a Petition for an Extraordinary Writ This matter came before the court on a petition for an extraordinary writ. Petitioner Kearns-Tribune Corporation (“Kearns-Tribune”) seeks a writ compelling the Honorable Homer F. Wilkinson, respondent, to (i) vacate his decision rendered on June 10, 1997, and entered on July 14, 1997, finding that Kearns-Tribune lacked standing to claim access to do...
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Page 4413
Benson Lewis appeals the circuit court’s judgment convicting him of two counts of voluntary manslaughter and two counts of armed criminal action. He contends that the circuit court erred in overruling his motion for judgment of acquittal at the close of the evidence and his motion for new trial because the state failed to meet its burden of establishing all the essential elements of voluntary mans...
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Page 4420
Plaintiff, St. Louis Tele-Communications, Inc. doing business as TCI Cablevision of St. Louis (“TCI”), appeals from the judgment entered on its action arising from an agreement for cable television services. We reverse and remand. Ray Kruse Construction Company (“Kruse”) owns and manages the Parquet Carondelet Apartments (“apartments”) in St. Louis, Missouri. TCI provides cable services and has a ...
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Page 4452
Louis Reed appeals his conviction of contempt of court. Reed’s behavior did not rise to the level of contempt, and therefore, we reverse his conviction. Reversed. FRANK, A.C.J., and PATTERSON and WHATLEY, JJ., concur....
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In re Thomas, Richard; — Defendant(s); applying for supervisory and/or remedial writs, Parish of East Feliciana, 20th Judicial District Court, Div. B, Nos. 10-86-622, 10-86-628 Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. LEMMON, J., not on panel....
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Page 20568
(orally). This has been a very interesting discussion. It involves very interesting constitutional questions and questions which are always interesting to lawyers — questions of procedure, I suppose that, when you take into consideration the general interest taken in this case, the nature of the circumstances out of which it grew, the unusual features of the proceeding itself, and the important qu...
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The motion of complainants to strike respondents’ exceptions to portions of the first and second supplemental hills for impertinence cannot prevail. An examination of the record shows that, at the date of the order suspending further proceedings until the decision of the Circuit Court of Appeals upon the interlocutory injunctions, no rule day had .passed after the service of process, at which the ...
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