Volume 1 — Wyoming Reports

This action was brought by Monseau, defendant in error, to recover of the Western Union Telegraph Company the sum of one thousand six hundred and ninety-six dollars and fifty cents and interest, for seven hundred and fifty-four telegraph poles alleged to have been sold and delivered to said company, at its request, for the price of 'two dollars and fifty cents for each pole.

<p>Practice — Appeal.—An. appeal must be perfected to entitle the appellant either to a stay of proceedings, or to a hearing on the appeal. Serving notice of appeal, and also filing in addition thereto a bond on appeal is insufficient unless the record has been properly taken to the appellate court. If the appeal has not been perfected the course for the appellee to pursue is by motion to dismiss the appeal.</p>

Tbe following statement of tbe case fully presents tbe exceptions and points argued by counsel, and was filed by tbe judge wbo delivered tbe opinion of tbe court.

Judgment was rendered in this action in the district court for the plaintiff, N. J. O’Brien, and against the defendant Wilson. Said defendant then instituted proceedings in error in tlie supreme court without having either made a motion in the court below for a new trial, or having a bill of exceptions allowed and signed by the judge of that court.

A full statement of this case is contained in the following opinion of the court. This was an action brought by the Great Western Insurance Co. v. R. A. Pierce and L. Murrin “$538.97. Cheyenne, Feb. 16,1871.

The following is the statement of the case, written by the judge who delivered the opinion of the court: An appeal from the district court, first judicial district, March term, 1872. ‘ This was an action by the plaintiff below to recover damages of the defendant in the sum of four thousand dollars.

This was an action brought in the district court of Laramie county to the March term, A. D. 1870, at which term a verdict was returned in favor of the plaintiff against H. B. Horton for the sum of three thousand dollars. The defendant reserved certain exceptions and gave notice of an appeal to this court.

On the third day of April, 1872, the above-named defendants in error filed in the district court the following petition, duly verified, for an order of mandamus against the above-named plaintiff in error-: “ To the honorable district court within and for said Lararamie county, in said judicial district': Tour petitioners respectfully represent and state to the court that they constitute the board of county commissioners for said Laramie county, and as such have performed the…

This was a criminal prosecution for assault and battery, commenced before a justice of the peace, by complaint and warrant. After change of venue, under the statute, the case was tried before Justice Slaughter, of Laramie county, on the nineteenth day of December, 1871, and said justice of the peace on tbe same day, after consideration of the case, adjudged that the defendant, Frank Wolcott, paya fine of ten dollars and costs of prosecution.

The following is the statement of the case as given by the court upon the delivery of the opinion. This was-an action on a written contract brought, by Darius Althrop to the adjourned November term, 1871.

The statement of this case is fully set forth in the opinion. cited: 2 Park. C. B. 583; 1 N. Y. Dig. 838; 1 Whar. Crim. Law, secs. 599, 600, 631-635. cited: 1 Whar. Crim. Law, 647-652; 2 Cush. 590; 2 Park. C. B. 583; 3 Id. 681; 1 Greenl. on Ev. sec. 53; 2 Gray, 354; 21 Pick. 515.

The following is the statement of the case filed by the judge writing the opinion: The defendant, Frank Philips, was indicted at the July term, 1871, of the district court, Laramie county, first judicial district, for the crime of murder in the first degree. At the same term he was arraigned on said indictment, and after interposition of plea of not guilty, was tried on said indictment and plea by jury and found guilty of murder in the second degree.

The opinion sufficiently states the case. in person, contended that by stipulation on file the only question to be determined by the court was: Did Council File No. 15, entitled a bill for an act to define the boundaries of Laramie county, as printed in the printer’s volume of the statutes of the second session of the legislature of Wyoming territory, become a law by its passage, notwithstanding the veto of the governor ?

This cause came to this court in accordance with the following stipulation: It is agreed by and between the parties to the above entitled cause as follows: 1.

- The opinion contains a sufficient statement of the facts in this case. made the following statements and citations: In this case there are but two errors assigned which it is necessary for the court to consider; for although the overruling of the defendant’s motion for a new trial is assigned as an error of the court below, still, as the motion for a new trial is based solely upon errors of the court during the trial, it is only necessary to consider the two eri-ors…

This action was brought upon a petition containing the following allegations: 1. That the defendant was a corporation duly organized under the general banking act of congress and acts amendatory thereof; 2. That on February 21, 1871, at Cheyenne, the plaintiff delivered to the defendant five thousand dollars; 3.

This was an action brought by Heenan to recover judgment against Brennan in the district court of Laramie county, for money alleged to be due him for building a billiard hall in Cheyenne, under a contract with Brennan. A contract was made in writing between the parties, by which plaintiff bound himself to build a house according to its specifications.

A sufficient statement of tlie case is contained in the opinion which follows.

An act was passed by the legislative assembly of the territory of Dakotah, and approved January 9, 1867, by the governor of said territory, to create and organize the county of Laramie, and subsequently said legislative assembly passed an act to reorganize said county of Laramie, which act was approved by the governor of Dakotah on the third day of January, 1868.

A sufficient statement of this case is contained in the opinion. This appeal is prosecuted to reverse the judgment of the court below, rendered at the March term, a.d. 1873. The first error assigned is in rejecting the evidence offered by defendant to show by the witness, E. P. Yining, that there was a general rule on all the railroads of the United States as to the time special rate contracts should expire.

• The plaintiff in error in this cause relies upon the following facts and law: I. The plaintiff in error was indicted in Laramie county for an assault with intent to murder, at the July term, 1873, of said court (see record, page 5, line 1); and the defendant afterwards caused the venue of said cause to be changed: See record, page 9; also pages 11, 12 and 13. II. Afterwards the cause was tried in Carbon county: See pages in record, 11, 12, 13, 15, 25, 26, 27, inclusive.

<p>Error to the District Court for Laramie County. *</p> <p>The opinion contains a sufficient statement of the case.</p>

The opinion contains a full statement of the case. First efror alleged: That the court erred in overruling the defendant’s motion in the court below, to strike from the files the motion of plaintiff, in the court below, to suppress the depositions taken by the defendant. Second error alleged: That the court erred in sustaining the motion of the plaintiff, in the court below, to suppress the depositions taken by defendant.

A sufficient statement of the case- is contained in the opinion. In this cause no objection was taken at any time to the jurisdiction either of the grand jury or the court, until the same was taken by the motion in arrest of judgment. Previous to this a motion for a new trial had been made in the case and overruled. I. The defect in jurisdiction did not appear in the record. A motion in arrest of judgment can only reach defects apparent in the record: See 1 Arch. Crim.

The opinion of the court contains a full statement of the facts in this case. It is contended that the court erred in sustaining the demurrer for two reasons: 1. Because the defense of limitation cannot be set up by demurrer; 2. Because the petition did not show on its face that the action was barred. I. It has long been settled by almost universal practice that the defense must be pleaded specially or it is 'waived: Angel on Lim.

The appellant seeks a reversal of the judgment and decree of the district court in this cause for the following errors of the district court, which it is alleged appear in the record in this cause, and which are claimed to be material errors and prejudicial to the appellant: I. The court erred in ordering the defendant to plead to the so-called amended bill of complaints. There was error in this for two reasons: 1.

A sufficient statement of this case is contained in the opinion. On November 28th, 1873, the plaintiff sued the defendant in an action of replevin to recover the possession of thirty-two and a half tons of hay, of the value of thirteen dollars per ton, alleged to be unlawfully detained: See record, pages 1, 2, 3. The defendants answered general denial and plea of property in defendants: • See record, pages 5 and 6.

<p>Error to the First District Court for Laramie County.</p> <p>A full- statement of this case is contained in the opinion of the chief justice.</p> <p>cites: Code of Wyoming, 389; 4 Abb. N. Y. Dig. 93; Peel v. Elliot, 16 How. 483; Dolfus v. French, 5 Hill, 493; Powell v. Tuttle, 10 Paige, 523; Mitchell v. Allen, 12 Wend. 290; 38 N. Y. 355, 361, 378, 385; 1 Greenleaf on Evidence, 381, 50; secs. Ill, 112 and 117; 2 Id. 484; 1 Parsons, 175; 43 Barb. 435; 51 Id. 616; Pars, on Part. 72-88, 120; 1 Phil. Ev. 466; Gonlclin v. Barton, 43 Barb. 435; Starkie on Evidence, 76.</p> <p>cites: 1 Phil, on Ev. 497; 1 Greenl. 177; Parsons on Partnership, 194, 185; 2 Washington C. O. Bepts. 388; 10 Johnson, 66; 7 Wendell, 216; 6 Pick. 464; 5 Id. 414; 9 Cushing, 255, 323; 9 Met-calf, 454; 2 Greenleaf, 482; 1 Smith’s Lead. Cas. 1190; 2 Nash, 1045.</p>

A sufficient statement of the case is contained in the opinion of the Court. contended that the legislative assembly of a territory not possessing sovereign powers could not create municipal corporations, nor grant them the authority to pass and enforce by-laws and ordinances, levy taxes, and to perform other duties incumbent upon such corporations. presented the following arguments and citations: This case comes up from the second district on appeal.

This case was originally commenced in replevin before a justice of the peace at Fort Laramie, taken from him, by change of venue, to a justice of the peace at Cheyenne, who gave judgment for plaintiff. The defendant appealed to the district court, where judgment was rendered for the defendant, and the case came up from that court. The defendant was an officer in the United States army stationed at the fort.

As this cause was, by consent of parties, submitted upon the brief of the plaintiff in error, and it contains also a statement of the case, it is given here in full. Upon an examination of the record, however, it is found that the testimony was contradictory in every material question.

The opinion contains a statement of the case. cites the following authorities: Story on Prom. Notes, secs. 118,120, 120a, 125; Story on Bills, sec. 197; Byles on Bills, 115; Chit, on Bills, 67; Story on Part. sec. 323; Wyoming Stat. 1873, 27, sec. The demurrer shall specify distinctly the grounds of objection to the petition.

The opinion of the chief justice contains a sufficient statement of this case: I. One of the errors complained of by the plaintiff in error is, that the court below erred in permitting the defendants to file an amendment to their answer, setting up a new and substantial ground of defense during the trial of the case. On this point see section 148 of Code of Civil Procedure of Wyoming Territory, title “Replevin,” Laws of 1869; 2 Greenl. on Ev., sec. 560 et seq. II.

This action was commenced in the district court of Laramie county, in November, 1874, by the plaintiff in error against the defendant in error, on a judgment recovered against the defendant and one Joseph Tyson, in the state of California, in the year 1861.

The plaintiff in error on the fourth day of August, 1873, filed in the district court of the then first, now second, judicial district, sitting within and for the county of Albany, Wyoming territory, his petition, and on the fifth day of September his amended petition against the board of county commissioners, alleging that plaintiff was the sheriff of Albany county and keeper of the common jail thereof ; that said defendant was indebted to plaintiff for the board of…

The facts sufficiently appear in the opinion of the court. The errors we rely on are shown by a motion for a new trial, and are substantially: 1. That in this trial the court erred in giving to the jury the instructions to the effect that the claim of the defendant in error had not been adjudicated; 2.

Motion to vacate order reversing judgment of District Court in and for Laramie County. This cause was argued and submitted at the March term, A. D. 1875, of this court. During the same term an opinion herein was filed and an order entered reversing the judgment of the district court. A motion is now made by the appellees to vacate such judgment or order for the reason of certain errors of judgment alleged to have been committed by this court in arriving at such decision.

This cause came on for trial in the district court of the second judicial district, upon an indictment against John J. Fein, charging him with having violated the revenue laws of the United States by a failure to keep certain books correctly, that by said revenue laws all brewers are required to keep. The defendant demurred to the indictment, on the ground that it did not state facts sufficient to constitute an offense punishable by the laws of the United States.

This cause was decided on a motion of defendant in error to strike the petition in error from the files and to affirm the judgment of the district court, for the reason that fatal defects appeared in the record.

The opinion of the court contains a sufficient statement of the case. contended that error had been committed by the district court in the following particulars: I. Overruling motion to set aside the service of the order of revivor. It should be served and returned as a summons: Laws of 1869, p. 596, sec. 457; Id. p. 519, sec. 65; Nash PI. & Pr. 1189. II.

The opinion contains a sufficient statement of this ease. contended tbat the demurrer should have been overruled. The petition sets out the bond of defendants, and alleges as a breach the refusal of the marshal to perform a duty enjoined and required by law, in consequence of which the plaintiff sustained a pecuniary loss: See Bump on Bankruptcy, pp. 92, 199, 451; sec. 40ci, p. 463; sec. 47, p. 477; rules 12 and 13.

The defendant in error, plaintiff in the district court, commenced an action in replevin against the plaintiff in error, defendant in the district court, for the recovery of the possession of five hundred cords of fire-wood.

A full statement of the case appears in the opinion of the chief justice. I. As to jurisdiction in equity to restrain the levy and collection of illegal taxes, and the illegal disbursements of public funds: See Dillon, 677, 693. II. As to the purposes and powers of municipal corporations: Dillon, 17-25, 28, 153. III. These corporations have no powers, except such as are expressly granted: Dillon, 101 et seq.; Cooley’s Const. Lim. 194-197, and notes. IY.

The plaintiff in error, who was prosecuting witness in a case of felony, on the preliminary examination -before a justice of the peace, allowed judgment to be entered against him for costs, and the proceedings to be dismissed; but finding, after the time had expired for appealing from the justice’s judgment, that the costs taxed were, as he, the prosecuting witness deemed, excessive, he attempted to have the matter reviewed on petition to the district court.

The plaintiff in error brought an action in replevin in the district court for Albany county to recover posáession of a wagon, harness, and other personal property. The cause came on for trial at the Albany county August term of the district court, before Chief Justice Eisher and a jury for trial. After the plaintiff rested his case, certain evidence having been offered by him being excluded by the court, the defendant moved for a nonsuit. The motion was granted.

This was an action in replevin, brought in the district court of Albany county, to the February term, A. D. 1875, by Charles H. Hutton v. Thomas Alsop and George Alsop, for the recovery of a certain lot of fencing poles, posts and wires for the construction of a fence; that one of the employees of Thomas Alsop tore down the said fence and hauled the poles, posts, etc., to the premises occupied by George Alsop; that upon the poles, posts, etc., being so hauled away, Mr.…

This was an action originally commenced upon information before Thomas M. Eisher, a justice of the peace in and for Laramie county, charging defendant (now plaintiff in error), with keeping a certain bawdy-housé, etc. The record shows that a jury trial was had, under the provisions of the law allowing jury trials before justices of the peace, and that the said defendant was adjudged guilty, and the penalty of one hundred dollars affixed against her.

This was an action brought from Albany county, second judicial district, at August term of said court, A. D. 1873. 'The record shows that N. K. Boswell commenced his action in the court below for the recovery of two thousand seven hundred and twenty-two dollars, alleged to be due him as sheriff and keeper of prisoners in the Albany county jail during parts of the years 1869,1870 and 1871, amounting in the aggregate as above stated, with a credit on said account in the sum of…

This was an action in chancery brought from the second judicial district to March term of this court, 1876. . The record shows that on the twenty-third day of July, A. D. 1869, the appellant, with one J. H. Finfrock, became sureties for one Samuel Douglass, who had been indicted by the grand jury of the offense of assault and battery, with intent to kill and murder.

A sufficient statement of the case appears in the opinion of the court and briefs of. counsel. . . This case comes up from the first district. Plaintiffs in error were defendants below. This action was one in replevin for the recovery of a horse, and the case was tried at the May term, 1875.

A sufficient statement of the case is contained in the opinion of the court.. contended that the report of the referee was irregular, uncertain, irresponsive to the issues, and unsupported by the evidence, and that the district court erred in referring the case back to the same referee and in ordering judgment upon the final report, and cited: 1 Abb. Prac. 187,262; Gregorys.

A full statement of the case is contained in the opinion of the court. contended that the demurrer to the indictment should have been sustained, for the reason that such indictment did not set forth sufficient 'facts, etc., and cited: Luavs of Wyoming, 1869, 380; Wharton C. L., sec. 36á, et seq.; 27. S. v. Lancaster, 2 McLean, 431; People v. Allen, 5 Denio, 76; Van Vallcenbury y. Stale, 11 Ohio, 404; Tibbals v. State, 5 Mis. 596; State v. Hussey, 11 Am. R. 209; Bish. on Stat.

Motion to affirm the judgment of the district court. Judgment was rendered in the district court in favor of O’Brien against Glafcke. Glafcke thereupon filed his undertaking in proceedings in error in the district court, as required by the statute, but took no further action to carry the case to the supreme court.

The plaintiff was tried in a justice’s court for a misdemeanor, found guilty and sentenced to pay a fine. On appeal to the district court, the judgment of tbe lower court was affirmed. The plaintiff in error then filed her petition in error in the supreme court.

A full statement of the case is contained in the opinion of the court. Held: when the officer was clerk of the city and county of New York and was also clerk of common pleas, that it was one and the same office: Warner v. The People, 2 Denio, 272.

A full statement of the case is contained in the opinion of the court, except as to the charge to the jury in the district court, which was as follows: At the request of the defendant, the court charged the jury that: 1.

• A sufficient statement of the case is contained in the opinion of the court. contended that the nonsuit was improvidently and irregularly granted, for the reasons: That the action was brought under the proper section of the act, and one giving more than two months in which to commence proceedings; that there was evidence of fraud for the jury to pass upon, and cited: Bump on Bankruptcy; 1 Dillon, 24; 14 Wallace, 244; 21 Id. 300; 7 Blatchford, 284; 8 Id. 488; 11 Ohio, 453;…

<p>Evidence, Preponderance oe. — It is the province of a jury, and of the court in the absence of a jury, to determine upon which side of the case the weight or preponderance of evidence is found; and it must be shown .affirmatively by the plaintiff in error that the verdict was contrary to the evidence, or was not sustained by sufficient evidence, or was contrary to law, before this court will interfere.</p>

A sufficient statement of the case appears in the opinion of the court. contended that the complainant had an ample remedy at law, and that her complaint should be dismissed, citing Story’s Eq. Jur. sec. 1031; Id. sees. 1030, 1032; Id. sec. 49.

A sufficient statement of the case will be found in tbe opinion of tbe Court. contended that tbe district court erred in not granting defendant’s motion to compel tbe plaintiff, upon tbe trial, to elect upon which of tbe separate causes of action be would proceed to verdict, and cited: 1 Pbill. on Ev. *854; Pierce v. Pickens, 16 Mass. 470; Willard’s Eq. Jur. 92; 3 Graham & Waterman, 710 et seq.; Pendleton St. Pi.

A sufficient statement of this case will be found in the opinion of the court. cited: Laws of Nebraska, 872; 4 Kent, 447; 18 How. 56; 9 Cush. 475; 439. cited: 3 Wash, on El. Property 249, 250; 1 Par. on Con. 139, 140; Angel & Ames 190, 192; 36 Yt. 452; Eedfield E. E. Cases 539; Tyler on Eject. 541, 542; 9 Cal. 1; 52 111 49, 219.

A full statement of the case will be found in the following opinions. I. That the laws of Wyoming postpone an unrecorded conveyance only as against a subsequent purchaser or incumbrancer in good faith for a valuable consideration, citing: 4 Kent’s Com. 165-178; Id. 456-459; Dickenson v. Tillinghast, 4 Paige, 215. II.

A full statement of the case is contained in the opinion of the court. cited: Devised Stat. 278; Bishop S^t. Crim. 248; 33 Texas E. 342; 1 Greenl. on Ev. 461; Squires v. Ihe Village of Néenah, 24 Wis. 493; 1 Bish. Crim. Pro., secs. 1056, 1058; State v. Enslow, 10 Iowa, 115; 7 U. S. Dig. 400. cited: Eevised Stat. 278; People v. Moody, 5 Park, C. E. 568; 20 IT. S. Dig. 385; 23 Id. 39; 1 Bish. Crim. Pro. 690-4; 1 Bish. Crim. Law, 437; 1 Archibald’s Crim Pr. 850; 1 Bouvier, 590.

<p>Error to the Second District Court for Albany County.</p> <p>A sufficient statement of the case is contained in the opinion of Judge Blair.</p> <p>cited: 12 Ohio St. 273; 1 Pars, on Con. 466-7; 37 N. Y. 575; 2 Greenl. on Ev. 90; Putney v. Farnham, 27 Wis. 187; 35 Wis. 171; 2 Ohio St. 241; 22 Cal. 620; 37 Id. 596; 35 Wis. 653.</p> <p>cited: 1 Pars, on Con. 478; Neclcer v. National Bank of Hagerstown, Cent. Law Jour. 1875, 471; Talmage v. Bell, 3 Selden, 328; Fowler v. Sealy, 72 Penn. 461; R. Stats, of the United States, sec. 5136.</p>

A sufficient statement of the case appears in the opinion of the court. cited: Sec. 820 Code Civil Pro.; Seneys’ Code, secs. 288 and 435 to 441; 16 Ohio St. 273; 22 Id. 208. cited: 1 Greenleaf (Redfield ed.), secs. 117, 118, 120; Laws of Wyoming, pp. 73 and 74, secs. 319 and 320; Anthony v. Slimpson et al., 4 Kansas, 211.

<p>Error to the Second District Court, for Albany County.</p>

<p>Proceedings in Error — Practice.—A party to have errors complained of, reviewed by the supreme court, must have his bill, containing all exceptions upon which he relies, together with the motion for a new trial, signed or allowed by the presiding judge of the court below.</p>

A full statement appears in the opinion. contended: 1. -That the verdict was not sustained by sufficient evidence, and was contrary to law; 2. That the jury erred in the assessment of damages; 3. That the court erred in permitting an affidavit made in another action to be introduced in evidence by one of the witnesses for the defense, and in the admission of other testimony; 4. That the court erred in the instructions to the jury; 5.

A motion was made by the defendants in error to dismiss the proceedings in error upon the grounds: Eirst, that such proceedings were not commenced within one year from the entry of judgment, as required by the statute as amended; second, that the bill of exceptions was not signed and filed within the time prescribed by law. cited: Laws of Wyoming, 1877, 23; Civil Code, 522.; 17 Wallace, 599; Cooley’s Const.