Volume 10 — Arizona Reports

Richard E. Sloan, Judge. Arch Maxwell and R. W. Mol ter were convicted of grand larceny, and appeal. The facts are stated in the opinion.

<p>APPEAL from' a judgment of' the District Court of the Second Judicial District in and for the County of Santa Cruz. Eugene A. Tucker, Judge.</p>

<p>APPEAL from a judgment of the District 'Court of the Third Judicial District in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

PETITION for Writ of Mandamus. Demurrer to application sustained. Petition amended and writ issued. 10 Ariz. 243. The facts are stated in the opinion. Plaintiffs contend that the Appropriation Laws of 1901, 1903, and 1905, and especially the latter Appropriation Act, constituted a re-enactment of act No. 53, Laws of 1897 (on the theory that said last act was in effect a reincorporation of the original act of incorporation), repealed when the Revised Statutes were enacted.

Bichard E. Sloan, Judge. The facts are stated in the opinion. The term “hereafter being used” covered after-acquired, property. Etheridge v. Sperry, 139 XJ. S. 266, 11 Sup. Ct. 565, 35 L. Ed. 171; Morton v. Williamson, 72 Ark. 390, 81 S. W. 236. The nature of the property and not the form of the instrument determines the rule of law applicable to it. The intention of the parties is what governs interpretation of the instrument. Cobbey on Chattel Mortgages, sec. 12.

Richard E. Sloan, Judge. The facts are stated in the opinion. This is a suit between the parties to the contract evidenced by the bill of sale, and no acknowledgment was required. The acknowledgment is not an essential part of the instrument. As to parties and persons with actual notice, neither an imperfect acknowledgment nor a total want of acknowledgment affects the validity of the instrument unless there is some special penalty created by statute.

Thomas Armstrong, Jr., Temporary Judge. The facts are stated in the opinion. The rendition of the judgment out of term was void under paragraph 1442 of the Revised Statutes of 1901. 11 Eney. of Plead. & Prac., p. 813; Puget Sound A. Go. v. Pierce County,, 1 Wash. Tr. 75; Black on Judgments, pars. 177, 180; Freeman on Judgments, 121; Doss v. Waggoner, 3 Tex. 515; Wicks v. Ludwig, 9 Cal. 173; Smith v. Chechester, 1 Cal. 409.

F. M. Doan, Judge. The facts are stated in the opinion. It is not alleged in the complaint that the promissory note to secure which the homestead was to have been mortgaged is still unpaid. This is a most material allegation, and if non-payment is not alleged, the complaint is bad. Lent v. New York etc. By. Go., 130 N. Y. 504, 29 N. E. 988; Notman v. Green, 90 Cal. 172, 27 Pac. 157; Barney v. Yigoreaux, 92 Cal. 631, 28 Pac. 678.

Fletcher M. Doan, Judge. The facts are stated in the opinion.

Fletcher M. Doan, Judge. Proceedings in involuntary bankruptcy of The Black Diamond Copper Mining Company. From an order refusing to adjudicate the company a bankrupt, and from an order making an allowance of attorney’s fees, Soto Bros. & Renaud, petitioning creditors, appeal. The facts are stated in the opinion.

Eugene A. Tucker, Judge. The facts are stated in the opinion. It is unquestionable that keeper’s fees are taxable as costs in the suit, and are always so recovered when they are recoverable at all. The Arizona statute is silent as to keeper’s fees, and in the absence of a compliance with a statute giving the right to such fees, the sheriff must rely on his contract. 25 Am. & Eng.

Tucker, Judge, sustaining a demurrer to the indictment. The facts are stated in the opinion. The indictment was not invalid for the reason that accused was not designated as bailee, trustee, or lodger, as stated in paragraph 461 of the Penal Code of Arizona.

R. E. Sloan, Judge. The facts are stated in the opinion. The ease of Czarnowski v. Holland, 5 Ariz. 119, 78 Pae. 890, so far as it holds the necessity of a broker having a written contract to recover for services rendered the owner in a sale of land, was mere dicta. The determination of other points not tending to the decision of the point upon which the appeal was disposed of, must be regarded as dicta, and not as the law of the case.

Edward Kent, Judge. The facts are stated in the opinion. If defendant was assaulted by deceased in such a manner as to induce in his mind a well-grounded belief that he was actually in danger of death or great bodily harm, he was justified in defending himself, whether the danger was. real or only apparent; and the common-law right of self-defense is not impaired by statutes making it an indictable offense to fight in a public place with deadly weapons.

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Navajo. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

. APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent, Judge. Affirmed. Opinion 208 U. S. 309, 52 L. Ed. 506. The facts are stated in the opinion. The courts of states which have similar provisions to paragraph 725 of the Revised Statutes of 1901 have said that the acknowledgment was not a part of the deed. Sicard’s Lessee v. Davis, 6 Pet. (U. S.) 124, 8 L. Ed. 342.

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District in and for the County of Gila. Eugene A. Tucker, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error — Motion for Judgment — Not Considered on Appeal Unless Presented to Trial Court in Motion for New Trial. : — An assignment of error that the trial court erred in denying appellant’s motion for judgment at the conclusion of appellee’s ease, cannot be considered on appeal where the ruling complained of was not presented to the trial court for review in the motion for a new trial.</p> <p>2. Appeal and Error — Assignment of Error — Defective.—An assignment of error that the evidence does not support the findings or judgment, is defective in not specifying in what particular or particulars the evidence fails to support the findings or judgment.</p> <p>3. Statute of EraudS' — Contract—Promise to Pay Debt of Another —Independent Agreement. — Where a contractor for whom plaintiffs were sureties abandoned his contract, thereby releasing plaintiff, a subcontractor, from carrying out his contract, and defendants, in order to induce plaintiff to complete the same, orally promised to assume the payment of the amount due from the contractor to plaintiff, such promise by defendant was based on an independent agreement, founded on a good consideration moving from plaintiff, and was not within the statute of frauds.</p>

John H. Campbell, Judge. The facts are stated in the opinion. An action lies on a promise made by defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not a party to the transaction. Lawrence v. Fox, 20 N. Y. 268; Brewer v. Dyer, 7 Cush. 337; Carnegie v. Morrison, 2 Met. 381; 7 Am. & Eng. Ency. of Law, 2d ed., pp. 104 to 106.

Doan, Judge. On appeal to the United States supreme court. The facts are stated in the opinion. The generally received doctrine upon the subject of notice is that whatever puts a party upon inquiry amounts, in law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the facts, by the exercise of ordinary diligence and understanding.

Edward Kent, Judge. The facts are stated in the opinion. There being no statutory dedication, and no acceptance for and in behalf of the public, and there being no actual user of the streets and alleys so laid out running through defendant’s land, the only dedication that can be asserted is that which can be inferred from the fact of reference to such map in the conveyances. 24 Am. & Eng.

John H. Campbell, Judge. The facts are stated in the opinion. No evidence or proof on non-payment is necessary, even when the action is upon a simple contract and where the first and only breach is the non-payment of the amount due. 22 Am. & Eng. Ency. of Law, and cases cited.

Eugene A. Tucker, Judge. The facts are stated in the opinion. With regard to conversations and transactions between appellee and A. T. Epley, the deceased, appellee’s testimony (upon which he relied for his proof) is not entitled to a high degree of credit as the other party to the transaction is dead. Rev. Stats. Ariz. 1901, par. 2536; Page v. Burnstine, 102 U. S. 668, 26 L. Ed. 270; Stuart v. Lord, .138 Cal. 672, 72 Pac. 143.

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

John. H. Campbell, Judge. From a judgment imposing a fine and from an order denying a new trial, appellant appeals. Appeal is the proper method of review from a judgment in criminal contempt proceedings where the court has exceeded its jurisdiction.

R. E. Sloan, Judge. The facts so far as pertinent are stated in the opinion. The jurors Haskins, Irwin, Miller, and White were incompetent and unqualified, and the court erred in denying defendant’s challenge to them and should not have caused defendant to exercise upon them his peremptory challenges. Rev. Stats. Ariz. 1901, title 9, chap. 1, sec. 915; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; Territory v. Davis, 2 Ariz. 63, 10 Pac. 359.

APPLICATION by the territory for a Writ of Mandamus to compel E. L. Vail and others, as supervisors of Pima County, to make certain tax levies and assessments. On appeal to the United States supreme court.

Thos. Armstrong, Jr., Temporary Judge. Statement of facts:— William K. Meade brought this action, seeking to have the defendant, M. D. Scribner, declared to be a trustee for the plaintiff of an undivided one-half interest in certain real estate.

John H. Campbell, Judge. Statement of facts:— Action by M. J. Nugent against John Stofella to quiet title to certain property and praying that a certain deed and mortgage affecting the property, be canceled. The defendant filed an answer and cross-complaint, asking that his title to the property be established.

Fletcher M. Doan, Judge. The facts are stated in the opinion. The court never obtained jurisdiction of the defendant, for the reason that the copy of the complaint and summons was served upon the defendant by one George Bravin, as an individual, and not by a constable of Cochise County, as is provided by paragraph 1319 of the Revised Statutes of Arizona of 1901. Where the statute prescribes a particular method of serving mesne process, that method must be followed.

John H. Campbell, Judge. The facts are stated in the opinion. In an action for wrongful death, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and in which with reference to such, survivor as is described there is no averment of pecuniary injury. Chicago etc. By. Co. v. Van Bushirh, 58 Neb. 252,. 78 N. W. 514; Chicago etc. By. Co. v. Bond, 58 Neb. 385, 78; N. W. 710, 6 Am. Neg. Rep. 116; Hurst v. By.

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

Fletcher M. Doan, Judge. The facts are stated in the opinion. The entries from the books, files, and records of the Copper Queen Consolidated Mining Company, without any further evidence, were clearly illegal evidence to show that Chris Brain and Dan Seffer were not working upon plaintiffs’ mine in December, 1902, as was testified to by witnesses Turner and Matko.

P. M. Doan, Judge. Remanded with directions to modify judgment, and, as so modified, Notice of appeal to the United States supreme court. The necessary facts are stated in the opinion. The complaint is fatally defective in that jurisdictional facts are not pleaded. Paragraph 1282 of the Revised Statutes of Arizona of 1901 prescribed how a judgment or other determination of a court should be pleaded. In this respect it is the same as California, Montana, and other states.

Eugene A. Tucker, Judge. From a judgment in favor of plaintiff, defendants bring error. The facts are stated in the opinion. There was not a sufficient service upon the Surety Company under paragraph 414 of the Revised Statutes of 1901, and the court acquired no jurisdiction over it.

Rehearing on appeal from District Court of the first Judicial District in and for the County of Pima. Geo. R. Davis, Judge. The facts are stated in the opinion.

Edward Kent, Judge. The facts are stated in the opinion. Upon the facts shown by the record, plaintiff, while on defendant’s caboose, was a bare licensee, to whom defendant owed no duty other than refraining from wantonly or willfully injuring him. 1 Kinkead Com. on Torts, see. 323; 23 Am. & Eng. Ency. of Law, 2d ed., p. 736; St. Louis etc. By. Co. v. Bennett, 69 Fed. 525, 16 C. C. A. 300; Kansas City etc. By.

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan, Judge.</p> <p>On appeal to the United States Supreme Court.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the-Third Judicial District in and for the County of MaricopaEdward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Geo. R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell, Judge.</p> <p>Opinion on rehearing, 11 Ariz. —, 89 Pae. 496.</p> <p>The facts are stated in the opinion.</p>

Eugene A. Tucker, Judge. The facts are stated in the opinion. The Hermosa Mining and Milling Company, in erecting the mill on the property, constructed partly from material from an old mill and partly from materials furnished by the appellee, was acting as the agent of the appellant.

AMENDED APPLICATION by E. N. Leatherwood and others, Directors of the Arizona Pioneers Historical Society, and that Society, against Wesley A. Hill, Territorial Auditor, for a Writ of Mandamus. See former opinion, ante, page 16, 85 Pac. 405. The material facts are stated in the opinion.

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. Fletcher M. Doan, Judge.</p>

<p>APPEAL from the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan, Judge.</p>