Volume 10 — South Dakota Reports

Hon. A, J, Plowman, Judge. Action upon a foreign judgment. The court struck out the answer as sham and gave plaintiff judgment. Defendant appeals. The facts are stated in the opinion. The court cannot lawfully hear evidence upon a motion to strike out as sham a verified answer containing a general or specific denial of the material allegations of the complaint. Fay v. Gobb, 51 Cal. 313; Greenbaum v. Turrill, 57 Id. 285; Fellows v. Muller, 38 N Y. Super.

■ Appeal from circuit court, Hutchinson, county. Hon. E. G. Smith, Judge. Action for services, commenced in justice’s court, and taken on appeal by defendant to the circuit court. Before the trial in justice’s court, the complaint was amended by striking out the names of all the plaintiffs except Shearer.

Hon. J. W. Jones, Judge. Action for the conversion of a certificate of satisfaction of a mortgage. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The complaint did not state facts sufficient to constitute a cause of action. Whipple v. Fowler (Neb.), 60 N. W. 15. The presumption is that the note is worth its face without the mortgage, and as the contrary was not alleged, no proof could properly be admitted. Sedgw.

Action original in this court to determine title to the office of regent of education. Application of plaintiffs for order restraining defendants from exercising control of office pfending litigation. The facts are stated in the opinion.

Original application by H. W. Sawyer for a writ of mandamus to compel H. E. Mayhew, state auditor, to draw a warrant. The facts are stated in the opinion. The state auditor, under Sec. 50 Comp. Laws, is clothed with full judicial and discretionary powers, such powers as can not be controlled by courts upon mandamus. State v. Hastings, 10 Wis. 461, 468; State v. Doyle, 38 Wis. 92; People v. Auditor, 2 Colo. 97; People v. Board, 11 Cal. 43.

Hon. J. W. Jones, Judge. Action to quiet title. Judgment for defendants, and plaint iff appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge Action for money had and received. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The complaint does no.t state a cause of action. 1 Estes PL § 642; Phillips Code Pl. 475. The language “No part of which has at any time been paid by the defendant, or his attorney, to the plaintiff” is the pleading of a negative pregnánt. Pom. Code Rem., § 618; Abbott’sTr. Brief (on Pleading) § 586; 1 Chit.

<p>Appeal-from circuit court, Davison county. Hon. J. W. Jones, Judge.</p> <p>Action for an injunction, and other relief. From an order granting defendant a new trial, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>Where an order granting a new trial is based on questions of law the discretion of the trial court is not involved, and the appellate court will review on its merits the decision of the trial court in granting a new trial. Sandmeyer v. Insurance Co., 2 S. D. 346, 50 N. W. 353; Walter A. Wood Co. v. Stenel, 36 N. W. 636; Duffy v. Railroad, 34 Wis. 192. In trials by the court the admission of incompetent evidence is not reversible error, the presumption being that the court considers only competent and legally sufficient testimony. Whipple v. Fowler, 60 N. W. 15; Tolerton & Stetson v. McClure, 63 N. W. 791; Pearce v. McKay, Id, 851.</p> <p>The trial court having exercised its discretion in granting the order for a new trial, and having taken into consideration each and every specification mentioned in the notice of intention to move for a new trial, the Supreme Court will not review the record to ascertain if the trial court has manifestly abused its discretion. Alt v. Railroad, 5 S. D. 20, 57 N. W. 1128; Hodges v. Bierlein, 4 S. D. 219, 56 N. W. 811; Gotzian & Co. v. McCollum, S. D. 65 N. W. 1068; Grant v. Grant, 6 S. D. 147, 60 N. W. 743.</p>

<p>Appeal from circuit court, Custer county. Hon. William Gardner, Judge.</p> <p>Action by W. E. Benedict, administrator, etc., of John F. Wight, deceased, against Wood Smith. Judgment for plaintiff and defendant appeals.</p>

<p>1. Where, after the evidence has been submitted, and plaintiff has moved for direction of a verdict, the case is continued for argument, a refusal on such argument to allow defendant to introduce further evidence was in the discretion of the court.</p> <p>2. Where, after judgment rendered, an order denying a new trial was entered, and was not appealed from, the sufficiency of the evidence to justify the judgment cannot be reviewed.</p>

Original application for certiorari to the circuit court of McCook county. The facts are stated in the opinion. A sale made in this state under a decree of foreclosure of a mortgage is a quasi judicial sale, and no confirmation thereof is necessary, except in compliance with Sec. 5149, Comp. Laws, and Rule 29 of the circuit court. Rorer Jud. Sales, 2nd Ed.. § 591; 12 Am. & Eng. Encyc. Law, 208.

Hon. A. W. Campbell, Judge. Action to recover subscription price for certain law books. Plaintiff had judgment and from an order denying his motion for a new trial, defendant appeals. The facts are stated in the opinion. Separation of the jury vitiates the verdict. Moush v. Commissioners, 21 Kan. 484; Silvery v. State, 71 Ga. 553; State v. Hornly, 32 La. An., 1268. Unauthorized communication with juror will be presumed prt judicial.

Hon. Loring E. Gappy, Judge. Action to recover for intoxicating liquors sold to defendant, From an order sustaining a demurrer to the answer, defendant appeals. The title and the enacting clause of the proposed amendment are without any binding force and add nothing to the resolution. In re Senate File No. 31, 41 N. W. 981; Hart v. Mayor, 24 Am. Dec. 165; Sutherland v. DeLeon, 46 Am. Dec. 100. Constitutional provisions are always mandatory. Cooley Const. Lim.

Hon. Loring E. Gaffy, Judge. Action in claim and delivery. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. Plaintiff has a right to dismiss on payment of costs. Schaetzel v. City of Huron, 6 S. D. 134, 60 N. W. 741; Mullen v. Peck, 10 N. W. 829; Martin v. Hodge, 1 S. W. 694.

Hon. Loring E. Gappy, Judge. Action to recover for salary of deputy county treasurer. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The complaint does not state facts sufficient to conslitute a cause of action. Gage County v. Wilson, 38 Neb., 167.

On rehearing. Certiorari to review the proceedings by which plaintiff was convicted of violation of a city ordinance, and fined. Plaintiff appealed from a judgment of the circuit court declaring the proceedings regular. In an opinion of this court reported in 8 S. D. at p. 456, the judgment was reversed.

Hon. A. J. Plowman, Judge. Action upon a policy of fire insurance. Plaintiff had judgment apd defendant appeals. The facts are stated in the opinion. There was a defect of parties plaintiff, and the plea in abatement should have been sustained; Comp. Laws, § 4912; 1 Eucyc. PI. & Pr., 14. All persons having an interest in the subject of the action should be joined as plaintiffs, or be made defendants.- Id. §§ 4877, 4879, 4885; Pratt v. Radford (Wis.) 8 N. W. 606.

Hon. J. W. Jones, Judgó. Action to recover balance due on sale of land. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion.

Hon. J. 0. Andrews, Judge. Action in claim and delivery. The court directed a verdict for plaintiff, and from a judgment entered thereon defendant appeals. The facts are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of action. Cobbey, Repl. § 12; § 568; Draper v. Ellis, 12 la. 316; Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090; Staley etc. Co. v. Wallis, 21 Mo. App., 128; Hines v. Chambers, 11 N. W. 129.

<p>Appeal from circuit court, Minnehaha county. Hon. Jos. W. Jones, Judge.</p> <p>Action upon a policy of fire insurance. Plaintiff had judgment, from which, and from an order denying its motion for a new trial, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>It was the duty of the insured to give in the proofs of loss full information, as called for by the policy. Blakely v. Ins. Co., 20 Wis. 217; Erwin v. Ins. Co., 24 Mo. App. 150; Wood, Fire Ins., §§411, 415. The use of kerosene oil in kindling a fire in a stove rendered the policy void. Gunther v. Ins. Co., 116 U. S. 118, S. C., 14 Am. & Eng. Corp. Cas., 567; Turnbull v. Ins. Co., 34 Atl. 875; School Dist. v. Ins. Co., 7 S. D. 458, 64 N. W. 528; First Congregational Church v. Insurance Co., 33 N. E. 572, 22 Ins. Law Jnl., 550.</p> <p>Making proof of loss after a waiver of proof on part of defendant does not preclude the plaintiff from availing himself on the trial of the benefit of the waiver. Purcell v. Ins. Co., 64 N. W. 943. Any defects in the proofs of loss not specified and pointed out by the insurer without unnecessary delay are waived. Comp. Laws, §§ 4177-8; Peet v. Ins. Co., 1 S. D. 462, 47 N. W. 532. The use of the kerosene did not constitute such a change of risk or increase of hazard as is contemplated by the policy. Comp. Laws, § 4175; Waters v. Ins. Co., 11 Pet. 213; Book 9, L. Ed. 691; Gates v. Ins. Co., 5 N. Y. 469; Ins. Co. v. Glasgow, 41 Am. Dec. 651; Gove v. Ins. Co., 48 N. H. 43; Billings v. Ins. Co., 20 Conn. 138; Henderson v. Ins. Co., 43 Am. Dec. 176; Perrin v. Ins. Co., 38 Am. Dec. 728; Ins. Co. v. Perisot, 35 Oh. St. 35; 1 Wood on F. Ins., §§ 108, 274; Matthews v. Ins. Co., 13 Barb. 245; St. John v. Ins. Co., 1 Duer 381; Smith v. Ins. Co., 65 N. W. 236.</p>

Hon. Frank B. Smith, Judge. Statutory contest proceedings to test the election of defendant to the office of county judge. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The notice of contest is fatally defective. Smith v. Harris, 32 Pac. 616; Whitney v. Blackburn, 21 Id. 874; Gillespie v. Dion, 44 Pac. 954; Rutledge v. Crawford, 27 Id. 779; Batterton v. Fuller, 60 N. W. 1071.

<p>On rehearing.</p> <p>Attachment. Plaintiff bank appealed from an order, made on motion of intervener, vacating its attachment. In an opinion reported in 9 S. D. 614, 70 N. W. 1059, the order was affirmed.</p>

Hon. Loring E. Gaffy, Judge. Plaintiff in error was convicted of an assault. The facts are stated in the opinion. The judge of the trial court making an order changing judges has no jurisdiction to receive a verdict in a case tried by the judge called in, nor to make any order whatever in such case; his authority thereafter was no more than that of a mere stranger. Lawrs of 1891, Chap. 50, § 1; State v. Henning, 3 S. D. 492; State v. Palmer, 4.

Original action to determine whether certain persons are regents of education. Judgment for defendants. The facts are stated in the opinion. The mere entry of the title was not a compliance with Art. 23 of the constitution; the proposed amendment should have been entered at length in the journal. Koehler v. Hill, (Iowa) 14 N. W. 738 and 15 N. W. 609; Oakland Paving Co. v. Hilton, (Cal.) 11 Pac. 3; State v. Tufiy, 12 Pac. 835.

Hon. H. G. FÍjller, Judge. Action to recover for lumber alleged to have been sold to defendants as partners. Defendants had judgment and plaintiff appeals. The facts are stated in the opinion.

Hon. W. A. Wilkes, Judge. Edward J. Sexton was convicted of bastardy, and brings error. The facts are stated in. the opinion. While an expert witness can state facts which are the result of his scientific knowledge, or professional skill, he cannot give the opinions of other experts embodied in medical or other scientific books.

Hon. D. Haney, Judge. Action upon a policy of fire insurance. Plaintiff had judgment, from which and from an order denying its motion for a new trial, defendant appeals. The facts are stated in the opinion. In order to support the judgment the special verdict must pass upon all the material issues made by the pleadings. 28 Am. & Eng. Encyc. of Law, 383; Waymyre v. Lank, 121 Ind. 1; Pint v. Bauer, 31 Minn. 4; Lane v. Lenfest, 40 Minn. 375; Clay v. State, 43 Ala. 350.

Hon. Frank B. Smith, Judge. Claim and delivery. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. On rehearing. Action to recover statutory penalty for taking usurious interest. Plaintiffs had judgment and defendant appealed In an opinion reported in 8 S. D. 214, 66 N. W. 122, the judgment was reversed and the cause remanded for a new trial.

Hon. A. J. Plow-man, Judge. Action to recover possession of a certain mining claim. The court directed a verdict for defendants, and from a judgment entered thereon plaintiffs appeal. The facts are stated in the opinion. The sheriff’s deed was competent evidence and should not have been excluded. Bowan v. Cockrill, 6 Kans. 311; Shields v. Miller, 9 Id. 390; Conner v. Long, 19 N. W. 221; Harteaux v. Eastman, 6 Wis. 404; Eastman v. Harteaux,. 12 Id. 296.

Original application for a peremptory writ of mandamus to compel 0. Buechler, as treasurer of the county of Hutchinson, to transmit certain moneys to the state treasurer. The act is constitutional. State v. Doherty, 29 Pac. 855; Pleuler v. State, 10 N. W. 481; People v. Murray, 38 N. Y. S. 909; Territory v. Connell, 16 Pac. 209; Minnehaha County v. Champion, 5 Dak. 433, 37 N. W. 766; People v. Coleman, 4 Calif. 46; 11 Am. & Eng.

Hon. J. W. Jones, Judge. Action upon a promissory note. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. In this state the payment of usurious interest is not sufficient consideration for the extension of a promissory note, so as to discharge the surety, the payment for such purpose being absolutely void. 2 Rand. Com.

Hon. Jos. W. Jones, Judge Action in conversion. Plaintiff appeals from an order sustaining a demurrer to the complaint. The facts are stated in the opinion. Conceding for the purposes of the argument, that the action of the bank in taking a seed lien was ultra vires, such plea can only be raised in direct proceeding instituted by the government. Bank v. Matthews, 98' U. S. 621; Fortier v. Bank, 112 U. S. 451; Amer.

Hon. E. G. Smith, Judge. Action upon a bond. Plaintiff had judgment, and appeals. The facts are stated in the opinion. Respondents are not liable for moneys received after the date of the dissolution of the co partnership. Standard Oil Co. v. Armestad, (N. D.) 69 N. W. 197.

Hon. A. J. Plowman, Judge. Action to recover from Meade county the sum of $24,200.10 alleged to be the proportion of the floating indebtedness of Lawrence county which was at the date of its organization agreed to be paid by Meade county. Plaintiff recovered a judgment for $1,729.87 only and appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Injunction. From an order dissolving a temporary restraining order, plaintiff appeals. The facts are stated in the opinion. The certificate of the trial judge shows that in dissolving the injunction he did not consider the evidence, but granted the order for the sole reason that the complaint did not state facts sufficient to constitute a cause of action; and this question of law is reviewable. Sandmayer v. Ins.

G. Smith, Judge. Application for peremptory writ of mandamus requiring the county treasurer to issue a redemption receipt. Defendant appeals from an order overruling its general demurrer to plaintiff’s affidavit. The facts are stated in the opinion. The lien of the personal property tax was inferior to the lien of the mortgage. Miller v. Anderson, 1 S. D. 539, 47 N. W. 957; Iowa Land Co, v. Douglas county, 8 S. P., 491, 67 N W, 52.

Hon. Loring E. Gaffy, Judge. Action on an official bond. From a judgment for plaintiff entered upon a verdict directed by the • court, the sureties appeal. The facts are stated in the opinion. The amount of the excess in the bond over the sum required by statute is purely voluntary, without consideration and cannot be enforced. Graham v. State, 66 Ind. 386; Mc-Caraher, v. Com., 5 Watts & Serg. 87, 39 Am. Dec. 106; Polk .v. Plummer, 2 Humph. 500, 37 Am.

Hon. J. W. Jones, Judge. Motion by C. S. Swenson to amerce T. W. Smelker, as sheriff of Lincoln county, for failure to sell personal property under an execution against C. Christoferson and another, and for nonreturn of the execution within the time required by law. From an order denying the motion, said Swenson appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action to foreclose a real estate mortgage. Plaintiff had judgment and defendants appeal. The facts are stated in the opinion. Under the terms of the' agreement when the insurance company sued upon the note, it had all it was entitled to, and this action, to foreclose the mortgage given to secure the note, will not lie. 17 Am. & Eng.

<p>pomp. Laws, See. 5189, providing that in special proceedings the clerk shall tax costs in favor of the prevailing party, does not apply to certiorcvri brought to a court, and on judgment in favor of the court no costs can be allowed.</p>

Hon. A. J. Plowman, Judge. Action to quiet title to certain mineral lands. Plaintiff had judgment, from which, and from an order denying a motion for a new trial, defendants appeal. The facts are stated in the opinion. There is not sufficient evidence to sustain the decision and judgment of the trial court. Randall v. Burke Twp., 4 S. D. 387, 57 N. W. 4. Adverse claimants must come forward with their objections and present them as provided by §§ 2325 and 2326, Rev. Stat.

Hon. J. W. J ones, Judge. Action by a foreigú corporation upon certain promissory notes. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The complaint is fatally defective because it contains no affirmative allegation that respondent has complied with the provisions of Chap. 47, Laws of 1895. Stevenson v. Ewing, 9 S. W. 230; Hawarth v. Montgomery; 18 Id. 399; Cary-Lombard L. Co. v. Thomas, 22 Id. 743; Land Co. v. Lumber Co; 35 Id. 886; Ins.

<p>1. Affixing a corporate seal to the note of a corporation does not destroy its negotiability; Comp. Laws, ‘Sec. 3549, abolishing all distinctions between sealed and unsealed instruments, being restricted only by section 4849, limiting the period within which an action on a sealed instrument can be commenced. ,</p> <p>2. Where a note, with a guaranty thereon containing an alteration made by drawing a pen mark across the word “we” and inserting the pronoun “I-” (thereby changing a joint contract to a joint and several obligation), was admitted in evidence and the jury instructed that the guaranty could not be avoided unless the guarantors proved that the alteration was made without their knowledge or consent, after the guaranty was executed, it was not error to charge that the appearance of the instrument was sufficient to put a subsequent purchaser on inquiry.</p> <p>3. It was not necessary to instruct that the alteration would not release the guarantors if made by a stranger without the consent of the holder, in the absence of request for such instruction, or of any claim that the paper was ever accessible to one not assuming to benefit thereby.</p> <p>4. The presumption that the holder of negotiable paper is an indorsee in due course is overcome by evidence that the instrument was unlawfully put in circulation, and casts on the holder the burden of proving that he purchased it for value before maturity, and without notice of any defense.</p> <p>5. Such rule is not in conflict with Comp. Laws, Sec. 4470, which provides that “the signature of every * * * indorsee of a negotiable instrument is presumed to have been made for a valuable consideration, before maturity, * * * and in the ordinary course of business,” but which does not declare what evidence will overcome the presumption, nor embrace all the elements of an indorsee in due course.</p> <p>g. An instruction cannot be reviewed unless an exception was taken at the proper time and the objection included in the assignment of errors.</p> <p>7. In an action on a note placed in escrow to be delivered on compliance with conditions which were never performed, one S. testified that he purchased the note for plaintiff, from a stranger, before maturity, and after inquiring at two banks as to the standing of the makers, without learning anything against the validity of the note., Held, that though S. may not have participated in the fraud by which the note was put in circulation, such.fact would not prove as a matter of law, that plaintiff who did not testify, was an innocent purchaser, etc., and that the question was properly submitted to the jury. Haney, J., dissenting.</p>

Hon. Jos. W. Jones, Judge. Action to foreclose a real restate mortgage. Plaintiff had judgment, from which, and from an order denying a motion for a new trial, certain of the defendants appeal. The facts are stated in the opinion.

Hon. E. G-. Si^ith, Judge. Action to determine conflicting claims to real estate and for rents and profits. Plaintiffs had judgment, from which, and from an order denying their motion for a new trial, defendants appeal. The facts are stated in the opinion. The deposition was defectively endorsed and should have been excluded. Comp. Laws, § 5292. Plaintiffs are, under the statute of limitations, estopped from now attacking the validity of the deed.

Hon. J. W. Jones, Judge. ^ Action for damages for breach of contract. Plaintiff had judgment, from which, and from an order denying his motion for a new trial, defendant appeals. The facts are stated in the opinion. The judgment should be reversed on account of the misconduct of counsel for respondent.

William Gardner, Judge. Action in conversion. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. No cause of action is stated in the complaint, because it fails to show that respondents have been damaged by appellant. See definition of the term “damages”, Webster’s Intern. Diet.; Comp. Laws, §§4574, 4575; Anderson’s Law Diet. 305; 2Greenl. Evi. § 253; Dow v. Humbert, -91 U. S. 299; Shugart v. Egan, 83 111. 57; Scripps v. Reilly, 28 Mich. 23.

Hon. A. J. Plowman, Judge. Action by John Doyle against the Grand Island & Wyoming Central Railroad Company and others to establish and enforce a mechanic’s lien. From a decree in favor of plaintiff, defendants other than defendant A. H. Fitch appealed. Pending the appeal, plaintiff assigned all his interest in the action to William E. Adams, who was substituted as plaintiff. The facts are stated in the opinion. The postponement asked for should have been granted.

<p>An opinion as to the constitutionality of House Joint Resolution, Laws 1897, Chap. 83, cannot be given under Const. Art. 5, % 13, which gives the governor power “to require the opinion of the judges of the supreme court upon important questions of law involved in the exercise of his executive powers, and upon solemn occasions,” since said resolution involves the personal right of certain parties to hold commissioned offices, and to be paid for services already rendered.</p>

. Hon. J. O. Andrews, Judge. Action on a default judgment. Plaintiff had judgment, from which, and from an order denying his motion for a new trial, defendant appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Action to recover possession of certain chattels, in order to foreclose a chattel mortgage thereon. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Claim and delivery. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. A judgment in writing signed by the court is entered by lodging it in the hands of the clerk. The filing is the entry. Copying it into the judgment book is merely a ministerial act and is not essential to the validity of the judgment, or an execution issued thereon.

Joseph W. Jones, Judge. Conversion. Plaintiff had judgment, from which, and from an order denying their motion for a new trial, defendants appeal. The facts are stated in the opinion. The assignee represents the creditors and cannot at the same time be the agent of the assignor and hold possession for the assignor.

Hon. J. 0. Andrews, Judge. Action upon a policy of fire insurance. Defendant’s demurrer to the complaint was sustained and plaintiff appeals. The facts are stated in the opinion. The law providing for a uniform insurance policy is unconstitutional and void. Dowling v. Ins. Co. (Wis.), 65 N. W. 738; Goss v. Ins. Co,, (Wis.), Id. 1036. The waiver of proofs of loss is sufficiently alleged in the complaint. Roberts v. Ins. Co., 62 N. W. 1048; Ins. Co. v. Hammang, Id. 883; Ins.

Hon. D. Haney, Judge. Action upon a policy of fire insurance. Plaintiff had judgment, from which, and from an order denying its motion for a new trial, defendant appeals. The facts are stated in the opinion.

Hon, E. G. Smith, Judge. Action to foreclose a real estate mortgage.- Defendants had judgment and plaintiffs appeal. The facts are stated in the opinion. As to the time when a mortgage deed is received and re=corded, the certificate of the register is conclusive, as between the mortgagee and a creditor who has attached the mortgaged land subsequently to the time stated in the certificate. Ames v. Phelps, 18 Pick. 314; Tracy et al. v. Jenks, 15 Id. 465.

Hon. Wm. Gardner, Judge. Action to foreclose a mechanic’s lien. Plaintiff had judgment and defendants Samuel and Martin appeal. The facts are stated in the opinion. The validity of the lien was not affected by the inclusion, through mistake, of certain items disallowed by the court, such items being easily separable from the proper items. North v. LaFlesh (Wig.), 41 N. W. 633;' Dennis v. Smith (Minn.), 38 N. W. 695; McMonagle v. Wilson (Mich.), 61 N. W. 496. .

Hon. A. W. Campbell, Judge. Action by John Chamberlain against Frank C. Hedger and others, as members of the board of canvassers of election returns, and Frank C. Hedger, as auditor of Brown county. From an order denying plaintiff’s motion for a new trial, he appeals. The facts are stated in the opinion.

E. G. Smith, Judge. Action by the town of Parkston against Hutchinson county to recover moneys paid to plaintiffs assessor for making annual assessments. A demurrer to the complaint was overruled, and defendant appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Statutory contest proceeding by Michael McMahon against Charles C. Polk to determine their respective rights to the office of state’s attorney. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The notice of contest was fatally defective, in that it contained jno allegation that plaintiff was learned in the law. §§ 24, 25, Art. 5, Const.

Hon. Loring E. Gappy, Judge. Action by the state, for the use and benefit of Daniel A. W. Perkins, against Fred M. Barnes and others, to recover the Value of a certain county warrant issued to said Perkins in payment of salary as district attorney. Plaintiff had judgment and defendant appeals. The facts are- stated in the opinion.

Hon. A. J. Plowman, Judge. Application to restrain the changing of a street grade. Preliminary injunction granted and defendant appeals. The facts are stated in the opinion.

<p>1. Laws 1893, O. 21, relating to attorneys and counselors, and providing for their suspension and disbarment,-and the procedure when an affidavit charging an attorney with embezzlement or other professional misconduct is filed, and repealing all acts and parts of acts in conflict therewith, is not in conflict with, and does not repeal, Comp. Laws, § 473, declarihg that conviction of a felony or of a misdemeanor involving moral turpitude is cause for revocation or suspension, and that the record of conviction is conclusive evidence.</p> <p>2. A conviction for receiving property of another with intent to convert the same to the defendant’s use and gain, knowing the same to have been stolen, being for an offense punishable by imprisonment in the penitentiary, is a conviction for a felony, within Comp, Laws, g 473, declaring that conviction for a felony shall be sufficient cause to revoke the license of or suspend an attorney.</p> <p>3. Under Comp. Laws, l 473, declaring the conviction of an attorney of a felony a sufficient cause to revoke his license or suspend him, and that the record of such conviction shall be conclusive evidence, a judgment of conviction for a'felony is sufficient to warrant suspending- the attorney, though such judgment has been superseded on writ of error.</p>

Hon. E. G-. Smith, Judge. Action in claim and delivery. #Plaintiff had judgment and defendant appealed. The facts are stated in the opinion.

<p>Appeal from circuit court, Clark county. Hon. J. O. Andrews, Judge.</p> <p>Action by M. Williams against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appealed. Motion to dismiss appeal.</p>

<p>In a proceeding under Comp. Laws, ? 473, declaring that conviction of a felony shall be cause for the suspension of an attorney, where the crime pharged was receiving property of the United States, with the intent to convert the same, knowing it to have been stolen, the question whether the crime was a felony is a conclusion of law, depending upon the punishment permitted by the United States statutes, of which a state court will take judicial notice.</p>

<p>Where it affirmatively appears from appellant’s abstract that the judgment appealed from does not exceed $75, the appeal will be dismissed.</p>

<p>Under Laws 1897, Chap. 55, declaring that no appeal shall be taken from finy judgment when the amount recovered is $75 or less, and Comp. Laws, § 5189, declaring that the clerk shall tax the costs as a part of the judgment, the costs constitute part of the judgment in determining the amount in controversy.</p>

<p>From the clerk’s taxation of costs, appellant appeals.</p>

Hon. A. J. Plowman, Judge. Action by the Axiom Mining Company against John Little to determine adverse claims and quiet title, as against defendant to a mineral claim, h rom a judgment in favor of plaintiff, defendant appeals.

Hon. A. W. Campbell, Judge. Action to set aside a foreclosure sale and for an accounting. Defendant had judgment and plaintiff appealed. The facts are stated in the opinion. Under our statute a power of sale in a mortgage is a trust, the donee of the power is a trustee, and the power can be executed only in the manner prescribed by the Code. Secs. 4354, 2815, Comp. Laws. The lots should have been sold separately. Secs. 5442, 5444, 5418, Comp.

<p>1. The fact that a witness in a criminal trial had incidentally spoken of the defendant as having been arrested upon another charge would not be sufficient to warrant the belief that the jury could have been misled by the charge of the court when speaking of the crime with which the “defendant is eharg-ed.”</p> <p>2. The trial court charged the jury: “Where the state makes out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is upon the defendant to make out his defense as to an alibi; and when the proof is all in, both that given for the defendant and for the state, then the primary question is (the whole evidence being considered), is the defendant guilty beyond a reasonable doubt? — the ’ law being that if, after you have considered all the evidence, as well as that touching the question of alibi as the criminating- evidence introduced by the state, you have a reasonable doubt of the guilt of the accused, you should acquit; if you have not, you should convict. ” Held, a proper charge and not error.</p> <p>3. The term “burden of proof,” when used in connection with proving- an alibi in a criminal trial, does not imply that the defendant must prove his defense by a preponderance of the evidence, or by such evidence as. will satisfy the jury that his defense is true, but only that, after the state has made out its case, it devolves upon the accused to introduce evidence to prove his alibi, if he relies upon such a defense. Puller, J., dissenting.</p>

Hon. F. B. Smith, Judge. Paul H. Putnam was convicted before a police justice of assault and battery.. He appealed to the circuit court, and from an affirmance of the judgment of conviction he further appeals. The facts are stated in the opinion.

Original application for a peremptory writ of mandamus to compel the state auditor to draw a warrant on the state treasurer on account of a certain appropriation for the railroad commissioners. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by John C. Freeman against the City of Huron and others to enjoin the treasurer of said oity from paying city warrants except in the order of their registration. Cora F. Mouser intervened, and joined plaintiff in his action. From a judgment granting plaintiff’s and intervener’s prayer, defendants appeal. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action by the Minnehaha National Bank of Sioux Falls against H. C. Torrey and others. Defendant Torrey had judgment and plaintiff appeals. The facts are stated in the opinion. There is no sufficient evidence of a contract for extension. Jones v. Matthieson, 2 Dak. 523; Buttz v. Colton, 6 Id. 307; Barnard & Leas Mfg. Co. v. Galloway et al., 5 S. D. 205; 58 N. W. 565.

Hon. Joseph W. Jones, Judge. Action by Jessie F. Connor against George A. Knott. From an order for plaintiff, defendant appeals. The facts are stated in the opinion. The court may require plaintiff to pay the costs as a condition precedent to bringing a new action for the same cause. Young v. Bush, 36 How Pr. 240; Sheedy v. McMurtry (Neb.) 63 N. W. 21; McKenster y. YanZantz, 1 Wend. 13; Hardon v. Hardick, 2 Hill. 384; Huntington v. Forkson, 7 Hill. 195, 6 Encyc.

Hon. Loring E. Gaffy, Judge. Action to enforce the specific performance of a contract to purchase real property. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The complaint is defective, because it contains no allegation of title in plaintiff. Freeman v. Stokes, 12 Phila. (Pa.) 219. Material allegations are not to be inferred from doubtful or obscure language.

W. Campbell, Judge. Action to foreclose a mortgage. From a judgment against defendant company for only part of the sum claimed, plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Pennington county. Hon. William Gardner, Judge.</p> <p>Injunction. Defendant was perpetually restrained, and he appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. Jos. W. Jones, Judge. Action for damages for malicious prosecution. Plaintiffs had judgment and defendant appeals. The facts are stated in the opinion. Whether the case which a party alleges to have been commenced and prosecuted maliciously be civil or criminal, there must be a concurrence of both malice and want of probable cause, in order that a party may recover damage. Stewart v. Sonneborn, 98 U. S. 194; Sutton v. Johnstone, IT.

<p>1. In an action to foreclose a mortgage assigned by E. to plaintiff, it appeared that, after the assignment, E. cancelled the mortgage of record without payment, and without plaintilf’s knowledge; that afterwards two mortgages on the same land were given to one L.; and that the mortgagor gave L. a quitclaim deed to the land. L. testified that his deed was received in payment of the said two mortgages, and that, “in the month in which these two mortgages were purchased, I had a loan of $2,500 paid off, and, under general instructions to E., the amount so paid off was reinvested” in such mortgages. Held, that the court properly found that E. was the agent of L., and that he was charged with E’s knowledge.</p> <p>2. Questions decided on a former appeal will not he reversed on a second appeal in the same action where the facts are substantially the same.</p>

Hon. J. W. Jones, Judge. Damages for personal injury. Plaintiff recovered a judgment, and defendant appeals. The facts are stated in the opinion. The objection that the complaint does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur. §4913, Comp. Laws; Bliss, Code PL, §413; Graham v. Camman, 5 Duer, 697; Richards v. Edick, 17 Barb. 260; Sterling v. Hanson, 1 Cal. 479; Abbe v. Marr, 14 Id. 210; Choynski v. Cohen, 39 Id. 501.

Action by Julia K. Searle against the city of Lead. Judgment having been affirmed on a former appeal, defendant appeals from the clerk’s taxation of costs.

Hon. A. W. Campbell, Judge. Action by the American Banking & Trust Company against J. W. Lynch. From a judgment for plaintiff defendant appeals. The facts are stated in the opinion.

<p>On petition for rehearing.</p>

<p>A finding for the suspension of an attorney being a civil proceeding, and not an action, under Comp. Laws, § 5189, it is error to allow respondent, as costs, §5 “before argument,’’ and §15 “for argument.”</p>

Hon. E. G. Smith, Judge. The trial court sustained an objection to the introduction of any evidence under the complaint, and gave defendant judgment for costs upon a directed verdict. Plaintiff appeals. The facts are stated in the opinion. It is not necessary that the injured party should rely solely upon the fraudulent representations; it is sufficient if he changed his position upon the faith of such representations, and would not have done so but for them.

Hon. A. J. Plowman, Judge. Action to enjoin the maintenance of a dam and the diversion of the waters of a creek from, their natural channel. Plaintiff had judgment, from which and from an order denying a new trial, defendant appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Conversion. Defendant had judgment on counterclaim, and plaintiff appeals. The facts are stated in the opinion. The motion to continue should have been granted. Stone v. Railroad, 3 S. D. 330, 53 N. W. 189; Johnson v. Dinsmore, 9 N. W. 558; Williams v. State, 6 Neb. 336; Gonring v. Railroad, 47 N. W. 18.

<p>Appeal from circuit court, Roberts county. Hon. A. W. Campbell, Judge.</p> <p>Statutory contest proceeding to determine the location of the county seat of Roberts county. Plaintiff’s demurrer to the answer was sustained, and defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>The words, “The place receiving a majority of all votes cast at said election shall be county seat of said county”, as used in § 2, Art. 9, Const., contemplate a majority of all the votes cast at said election, and not a mere majority of the votes upon the particular question of the location of the county seat Where the framers of the constitution intended to limit the majority to the particular question, they have used language plainly expressive of such intent. §§ 2, 3, Art. 20; § 5, Art. 26; § 1, Art. 23, Const. And this is the general rule. People v. Wyant, 48 111. 263; Enyartv. Trustees, 25 Ohio St. 618; People v. Brown, 11 111. 479; Everett v. Smith, 22 Minn. 56; Taylor v. Taylor, 10 Id. 107; Bayard v. Klinge, 16 Id. 247; State v. Winkelmier, 35 Mo. 103; State v. Swift, 69 Ind. 505; State v. Frances, (Mo.) 8 S. W. 1; Brown v. Stump, 16 Lea. 481; Banking Co. v. Board, 41 Fed. 321; Smith v. Board, (Minn.) 65 N. W. 956; State v. Babcock (Neb.) 22 N. W. 372; State v. Anderson, (Neb,) 42 N. W. 421; State v, Foraker, (Ohio) 23 N E. 491, State exrel. v. Lancaster Co., 6 Neb. 474; State v. Bechel, 22 Neb. 160; Douglas County v. Keller, (1895), 43 Neb. 635; Bryan v. Stephenson, (Neb. 1897), 35 L. R. A. 752; Stern-berg v. State, (1897), 69 N. W. 849; Southerland v. Goldsboro, 96 N. C. 49; McDowell v. Construction Co., Id. 514; Duke v. Brown, Id. 197; People exrel. v. Berkeley, (Cal.) 23 L. R. A. 838; Chestnutwood v. Hood, 68 111. 132; State v. Brassfield, 67 Mo. 331; State v. Mayor, 73 Id. 435; Belknap v. Louisville, (Ky. 1896), 34 L. R. A. 256; Stebbins v. Judge Sup. Ct. (Mich., 1896), 66 N. W. 594; South Bend v. Lewis, (1894), 138 Ind. 512; McCrary, Elections, § 209. The case of Gillespie v. Palmer, 20 Wis. 244, relied upon by respondent, has been condemned by the court that decided it. See Bound v. Railroad, 45 Wis. 567; Sawyer v. Ins. Co. 37 Wis. 524.</p> <p>The majority received by Sisseton was sufficient, Under § 2, Art. 9, Const. Green v. State, 47 Pac. 259; McCrary, Elections, 171, 445; State v. Barnes, (N. D.) 55 N. W. 883; State v. •Langlie, (N. D.) 67 Id. 958; State v. Grace, (Ore.) 25Pac. 382; Metcalf v. Seattle, Id. 1010; Greene v. State, (Idaho,) 47 Id. 259; State v. Echols (Kan.), 20 Id. 523; People v. Town, 106 Cal, 711; Walker v. Oswald (Md.), 11 At].. 711; Dayton v. St. Paul, 22 Minn. 400; Gillespie v. Palmer, 20 Wis. 544; State v. Greene, 37 Oh. St. 227; State v. Foraker, 46 Id. 694; Curran v. Clayton, 86 Me. 42; State v. Pease, 27 N. Y. 55; Citizens, etc. v. Williams, et al. (La.), 21 So. 647; Cass County v. Johnson, 95 U. S. 360; Douglas v. Pike county, 101 Id. 677; Knox county v. Bank, 147 Id. 91; St. Joseph Twp. v. Rogers, 16 Wall. (TJ. S.), 644.</p>

Hon. J. W. Jones, Judge. Action to enjoin defendant company from cutting off plaintiff’s water supply. A preliminary injunction was granted plaintiff but on trial judgment was rendered for defendant. A reference was ordered to assess damages sustained by reason of the issuance of the preliminary injunction. From the judgment entered upon the referee’s report, plaintiffs and sureties appeal. The facts are 'stated in the opinion.

<p>Action upon a bond. Plaintiff had judgment, and certain defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>It was error to deny the motion for a continuance. Stone v. Railroad, 3 S. D. 330; 4 Encyc. PI. & Pr. 866; Gaines v. White, 1 S. D. 434; Blaine v. Poyer, 60 N. W. 865; McNeally v. State, 36 Pac. 824; Peck v. Lovett, 41 Cal. 521; Hopkinson v. Jones, 28 111. App. 409.</p> <p>The proposed evidence was immaterial, and the motion was therefore properly denied. Bank v. Chester, 55 Cal. 49; Bloom v. Hazzard, 37 Pac. 1037. The granting or refusing of the motion rested in the discretion of the trial court, and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed. Gaines v. White, 1 S. D. 434; Peck v. Parchen, 2 N. W. 597; Lavery v. Crooke, 9 N. W. 599. ^</p>

On rehearing. Statutory contest proceeding. Plaintiff had judgment and defendant appealed. In an opinion handed down July 14, 1897, 10 S. D. 90, 72 N. W. 101, the judgment was affirmed. Appellant petitioned for a rehearing, which was granted.

F. B. Smith, Judge. Action on an undertaking on appeal. Plaintiffs bad judgment, from which and from an order overruling their motion for a new trial, defendants appeal. The facts are stated in the opinion. The questions of law decided upon a prior appeal become the law of the case and must control in all subsequent proceedings.

Hon. Loring E. Gaffy, Judge. Claim and delivery. Plaintiff had judgment against defendant Leidle, who appeals. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action on grub-stake mining contract. Defendants had judgment, and from an order denying his motion for a new trial, plaintiff appeals. The facts are stated in the opinion. The motion for a new trial, upon the ground of newly discovered evidence, should have been granted. Gaines v. White, 1 S. D. 442. . The motion was properly denied, because the alleged newly-discovered evidence would not have changed the result.

Hon. A. J. Plowman, Judge. ^ Action by the Merchants’ National Bank against William R. Stebbins, impleaded with others, to recover certain sums of money loaned defendant, From a judgment in favor of plaintiff, defendant Stebbins appeals. The facts are stated in the opinion. It was error to admit the testimony taken at a former trial on the mere certification of the court reporter, without further identification. § 481 et seq., Comp.

Frank B. Smith, Judge. Bastardy proceedings. From an order quashing the complaint and discharging defendant, the state brings error. The facts are stated in the opinion. The court had jurisdiction. State v. Bunker, 7 S. D. 639, 65 N. W. 33; Trotter v. Ass’n., 9 S. D. 596, 70 N. W. 844. Bastardy proceedings are quasi civil in character. State v. Bunker, supra; State v. Scott, 7 S. D. 619, 65 N. W. 31; Baker v. State, (Wis.) 26 N. W. 167; Miller v. State, (Ala.) 20 So. 392.

Hon. A. J. Plowman, Judge. Action against administratrix for moneys had and received by her intestate as treasurer of plaintiff corporation. Plaintiff ■ had judgment and defendant appeals. The facts are stated in the opinion. The minutes of the directors’ meeting were admissible upon their own face. 17 Am. & Eng. Encyc. Law, 85; 1 Morawetz, Corp. § 532; 3 Thomp. Corp. §§ 3927, 3934; Granger v. Mining Co., 59 Calif. 679.

Hon. Joseph W. Jones, Judge. Damages, for alleged illegal arrest and imprisonment. Plaintiff had judgment and certain defendants appeal. The facts are stated in the opinion. Evidence on the part of defendants tending to show want of malice, that they were hcting in good faith, or that there was probable cause for the arrest, was admissible under the general denial, and particularly in mitigation of damages.

Hon. J. W. Jones, Judge. Action to recover value of broker’s services. Defendants moved to vacate and set aside the judgment, the order of publication, and all proceedings had in the action. The motion was granted, and plaintiff appeals. The facts are stated in the opinion. The affidavit for publication of summons was sufficient. Comp.

Original application for mandamus commanding defendant to deliver to relator Ms office as insurance commissioner, together with the books, papers, seal, etc., belonging thereto. The facts are stated in the opinion. A legislative act cannot be declared void unless it be shown by the attacking party, beyond a reasonable doubt, that it is in conflict with the state or national constitution. State v. Morgan, 2 S. D. 32; Cooley, Const.

Hon. E. G. Smith, Judge. Proceedings to lay out a public road. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. The omission of a description of the land of the school district, and of the names of the owners of the lands was fatal to the petition. Town of Wayne v. Caldwell, 1 S. D. 483; Damp v. Town of Dane, 29 Wis. 419; Godchaux v. Carpenter, 14 Pac. (Nev.) 140; Williams v. Holmes, 2 Wis. 96; Hayes v. Campbell, 17 Ind. 490.

Hon. J. W. Jones, Judge. Action against maker and indorser of a promissory note. Plaintiffs had judgment and defendant Bailey appeals. The facts are stated in the opinion.

Hon. J. 0. Andrews, Judge. On rehearing. Action to set aside a sale of real and personal property, as in fraud of creditors. Defendant appealed from an order striking out parts of the answer. In an opinion filed August 5, 1896, the order was affirmed. 9 S. D. 184, 68 N. W. 287.

Hon. E. G. Smith, Judge. Action to cancel a special tax. Defendant had judgment, from which and from an order denying his motion for a hew trial, plaintiff appeals. The facts are stated in the opinion.

E. G. Smith, Judge. Action by Lucy M. Bunker, as executrix, against C. B. Taylor and another, on a promissory note. O. B. Taylor was not served with summons, and a verdict was rendered against the other defendant, Maris Taylor, and a new trial granted him, and plaintiff appealed. The facts are stated in the opinion.

E. G. Smith, Judge. Forcible entry and detainer. Plaintiff had judgment and defendant Dowling appeals. The facts are stated in the opinion. The contract and deeds were given as mere security and were therefore nothing more nor less than a mortgage; the legal title did not pass and the plaintiff had a mere lien, without right of possession.

Hon. E. G. Smith, Judge. Action to have a warranty deed and two certain contracts declared a mortgage and to foreclose such mortgage. Plaintiff had judgment, from which, and from an order denying their motion for a new trial, defendants appeal. The time for an appeal not having passed, the action was still pending and it was error to admit the judgment in evidence as a former adjudication. Sec. 5343, Comp. Laws; In re Blythe’s Est., 34 Pac.

<p>On rehearing.</p> <p>This case was first decided in an opinion filed June 17, 1896, and reported in 8 S. D. 604, 67 N. W. 831.</p>

<p>On rehearing.</p> <p>This case was first decided in an opinion filed June 17, 1896; and reported in 8 S. D. 616, 67 N. W. 1151.</p>

<p>A judgment will not bo directed for appellant on reversal unless it is plain from the pleadings, or from the nature of the controversy, that appellee cannot prevail.</p>

Action to recover the value of certain shares of stock in a building and loan association. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion.

Hon. A. W Campbell, Judge. Prohibition. From orders overruling a demurrer to the petition, and denying a motion to vacate a writ of prohibition, defendants took separate appeals. The facts are stated in the opinion.

E. G-. Smith, Judge. Action to cancel a deed. Plaintiff had judgment by default. From an order opening the default and allowing defendant to answer, plaintiff appeals. The facts are stated in the opinion.

Hon. W. A. Wilkes, Judge. Damages. Plaintiff recovered judgment in a justice’s court, and defendant appealed to tbe county court, where a trial de novo was had and plaintiff again had judgment. Defendant appeals. The facts are stated in the opinion. The question of contributory negligence should have been submitted to the jury.

Hon. J. W. Jones, Judge. Action to foreclose a mechanic’s lien. From an order overruling a motion to vacate a default judgment in favor of plaintiffs, defendant Southard appeals. The facts are stated in the opinion. The trial court had no jurisdiction to render judgment against defendants in excess of the relief demanded in the complaint. Comp. Laws, § 5097; Simonson v. Blake, 20 How. Pr. 484; 6 Encyc.

Hon. Frank B. Smith, Judge. Action on promissory note. Plaintiff had. judgment, and defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Brookings county.</p> <p>Damages for deceit. Plaintiff had judgment and defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. A. W. Campbell, Judge. Action on contract. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The alleged contract was neither signed nor delivered, and hence was not an “express contract in writing” within the meaning of § 3721, Comp. Laws. 3 Am. & Eng. Encyc. Law 826; 7 Id. 117; Bishop on Contr. § 172. It is elementary that a contract may be enforced as a binding obligation, though not signed by either party.

Hon. J. O. Andrews, Judge. Action by an infant, by his guardian ad litem, for personal injuries. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. The motion, to amend was beyond the power of the court to allow, for it permitted an entire change of parties defendant. 1 Encyc. PI. & Pr. 546; Bassett v. Pish, 75 N. Y. 303; Shaw v. Cock, 78 Id. 194; N. Y. etc. Ass’n v. Remington Agr.

Hon. Joseph W. Jones, Judge. Action upon two certain promissory notes. Plaintiff had judgment upon one of said notes, and from such judgment and an order overruling their mobion for a'new trial, defendants appeal. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action by Custer county to recover certain moneys alleged to have been deposited by its treasurer, in the Commercial Bank of Hermosa. Plaintiff had judgment and defendant appeals.

Action to recover damages for the death of plaintiff’s husband. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. All inferences which could be legitimately drawn from any of the evidence were for the jury and it was error for the court to withdraw the case from the jury if there was any substantial conflict in the evidence.

Hon. A. J, Plowman, Judge. Action to compel defeiidant to convey certain real property. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. Where the Secretary of the Interior, acting on known facts, draws an erroneous conclusion and issues a patent to a party not entitled thereto, his action, is not conclusive, but is subject to review by the courts.

Hon. A. J. Plowman, Judge. Appeal from order of circuit court refusing to dismiss an appeal by an administrator of an estate, taken from an order of the county court allowing claim of claimant Against said estate. The facts are stated in the opinion.

<p>Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge.</p> <p>Specific performance. Defendant had judgment and plaintiff’s appeal.</p> <p>The facts are stated in the opinion.</p>

Hon. A. J. Plowman, Judge. Action to recover from the estate of Thomas H. White, deceased, moneys had and received by him as treasurer of plaintiff company. Plaintiff had judgment, and defendant appeals. The’facts are stated in the opinion. An account kept in the regular course of business by the treasurer and secretary of plaintiff, in the only books in which accounts of the company were kept, is prima facie a correct account, and it was error to exclude it. 1 Whart.

<p>Appeal from county court, Lawrence county, Hon. William A. Rinehart, Judge.</p> <p>Action to recover attorney fees. Defendant had judgment. Plaintiff petitions to prove a bill of exceptions.</p>

Action to determine adverse claims. Defendant had judg' ment and plaintiff appeals. The facts are stated in the opinion,

<p>Error to circuit court, Roberts county. Hon. A. W. Campbell, Judge.</p> <p>Bastardy proceedings. Defendant was convicted and brings error.</p>

<p>At the time of the execution of a note it was agreed orally between the maker, payee, and one D. that D. should collect money due to him and the maker, and pay it over to the payee. The money was collected, but was not paid, and, after maturity of the note, D., in recognition of his prior agreement, indorsed the note in blank. Held, that D., being morally bound to pay the money over, and, in recognition of his moral obligation, indorsing same, which was an express promise in writing, was liable as a guarantor.</p>

■ Appeal-from circuit court, Hutchinson county. Hon. E. G. Smith, Judge. Action by Alfred Brown against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals to the circuit court, thence to the supreme court. The facts are stated in the opinion.

Hon. W. A. Wilkes, Judge. Action to recover a threshing bill. Defendant had j udgment in justice court. Plaintiff appealed to the county court and recovered judgment against defendant, who appeals. The notice of appeal from justice’s court not having been served upon either the appellant or his attorney, the county court was without jurisdiction.

<p>1. An error in sustaining an objection to a proper question will be cured where substantially the same question is subsequently answered by the witness without objection.</p> <p>2. Where the terms of a contract are not ambiguous and uncertain, an omission of the court to instruct that it should be interpreted in the sense the promisor believed the promisee understood it at the time, as provided by Comp. Laws, l 3564, is not error.</p> <p>3. A case will not be reversed on appeal for an omission of the trial court to instruct on a particular point, where its attention is not called to the subject, and no instruction is requested.</p> <p>4. An instruction not excepted to prior to judgment cannot be reviewed on appeal.</p> <p>5. Laws 1893, Chap. 70, authorizes the court to impose reasonable cost upon denying a motion for a- new trial, and to make their payment a condition precedent to further proceedings. Held, that under this statute it was not error for the trial court to impose terms on denying such a motion.</p>

On rehearing. In an opinion filed April 6, 1897, and reported in 9 S. D. 576, 70 N. W. 835, the judgment appealed from was reversed and a new trial ordered.

Hon. E. G. Smith, Judge. In the matter of the guardianship of the person and estate of Thomas Olson. From an order of the circuit court denying the motion to dismiss the appeal from an order revoking the guardianship, Olson appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action to foreclose a mechanic’s lien. Defendants had judgment and plaintiffs appeal. The facts are stated in the opinion.