Volume 10 — Utah Reports

Chas. S. Zane, Judge. Action by Louis Hyams and John A. Erwin against Simon Bamberger and O. J. Salisbury to recover $15,291.61 damages, for the alleged conversion of certain pledged notes and stock. Tried before T. J. Anderson, referee, who found that plaintiffs were entitled to a judgment for only $252.00, and that defendants were entitled to their costs. The report of the referee was confirmed and judgment entered accordingly.

James A. Miner, Judge. Action of claim and delivery of S. Hirscb & Company against H. E. Steele, constable. From - a judgment for plaintiff, defendant appeals. The doctrine of conditional sales does not apply or govern in a case where a wholesale vendor sells personal property on credit and delivers the same to a retail dealer for the purpose of resale by such vendee. Winchester v. Carmen, 9 N. E. R. 70? (58 Am. Rep. 382).

C. S. Zane, Judge. Action of John J. Montague against George McCarroll to quiet the title of certain real estate. From a judgment for defendant, plaintiff appeals.

Chas. S. Zane, Judge. Action by the Kansas City Hardware Company against James Neilson on account. From a judgment for plaintiff, defendant appeals. The defendant, by the stipulation to take the deposition and by his appeal from the entire judgment, entered his full and unqualified appearance in the district court.

• Appeal from the district court of the third judicial district, Hon. Chas. S. Zane, Judge. Action by the Hudson Furniture Company against the Freed Furniture & Carpet Company for the price of goods sold and delivered. Verdict for the plaintiff set aside and a new trial granted. From the order granting defendant a new trial, plaintiff appeals. If the provisions of the statute, 2 Comp.

On rehearing. Granted. The former decision of this court reversed, and tbe cause remanded to the court below for a new trial. For the former opinion of this court, per Zane, C. J. (Smith, J., dissenting), see 9 Utah, 383. (35 P. E. 498.)

Original application of Ed. Lewis for a writ of habeas corpus. Held: in construing a statute similar to that of ours, that a provision similar to section 5344, did not apply to cases in which the sentence includes both imprisonment and fine, but is limited. to cases in which a fine alone is imposed.

James A. Miner, Judge. Action by F. 0. Groome against Ogden City for damages for breach of contract. Judgment for defendant and plaintiff appeals. Evidence of language used by the parties during the negotiations explanatory and not contradictory of the language used in the contract is admissible. 1 Green on Ev. note 2, p’. 329, note 2; 8 Wall. 1; 5 New York, 28) 15 Ill. 423; 100 Mass. 63; 87 Ind. 1; 78 New York, 74.

James A. Miner, Judge. Action by the Anderson Pressed-Brick Company against Dubois & Williams, Joseph H. Smith, et al., intervenors, for a balance due for material sold and delivered. From a judgment for plaintiff, defendants appeal.

Chas. S. Zane, Judge. Action by Martha Turner against the Utah Title Insur-anee & Trust Company to recover on certain certificates of deposit.

Chas. S. Zane, Judge. Action of Martha Turner against Wells, Fargo & Company to recover a sum of money on deposit with defendant, and which she claimed was assigned to her by Minnie Barton, the depositor. Frank Kimball, special administrator of the estate of Minnie Barton, intervened, and from the judgment for plaintiff, appeals.-

Action of Martba Turner against Union National Bank to recover a sum of money on deposit with defendant, and which she claimed was assigned to her by Minnie Barton, the depositor. Frank Kimball, special administrator of the estate of Minnie Barton, intervened, and from the judgment for plaintiff, appeals.

Charles S. Zane, Judge. Action by V. M. C. Silva against W. L. Pickard and Henry Cohn, F. H. Auerbach and S. Auerbach, copart-ners as H. Cohn & Co., Territorial Wool Association and F. H. Auerbach, for a dissolution of the copartnership known as the Territorial Wool Association and for an accounting. From the judgment of the district court confirming the report of Waldemar Van Cott, referee, defendants H. Cohn & Co., and F. H. Auerbach, appeal.

James A. Miner, Judge. Action by C. A. H. McCauley against John Q. Leavitt, et al., to foreclose a'mortgage on real estate. From tbe judgment for plaintiff for tbe principal sum and interest to the day of maturity, but refusing to allow interest to tbe day of trial and attorneys’ fees provided in the note, be appeals. The note was payable at the First National Bank of Ogden, Utah. Respondents’ obligation was to be ready and willing to pay at that place.

Charles S. Zane, Judge. Action by Joseph Coblentz and others, against the Driver Mercantile Company, and others, to.set. aside a deed of assignment and for the appointment of a receiver. From the judgment for defendants, plaintiffs appeal. The lower court found that the claims of Eemington, assignee, and Clute were fictitious and fraudulent.

James A. Miner, Judge. Action by the Lima Machine Works against Elias H; Parsons and another for the conversion of a locomotive steam engine. From the judgment for plaintiff, defendants appeal. The contract between the parties was in effect a chattel mortgage, but is not executed as required by 2 Comp. Laws 1888, § 2801. The contract' taken as a whole, shows it is not a conditional sale. Herryford v. Davis, 102 H. S. 235; Harvey v. Locomotive Works, 93 H. S. 664.

James A. Miner, Judge. Action by Dennis Daniher against the Grand Lodge Ancient Order of United Workmen, Jurisdiction of Nevada, and all individual members of all lodges within said jurisdiction subordinate to and under the control of said Grand Lodge A. O. U. W. of Nevada, including D. Thorburn and N. M. Ruick. From a judgment for plaintiff, defendants appeal.

' Appeal from the district court of the first judicial district, Hon. John W. Blackburn, Judge. Action by Andrew Knudsen and Herman Knudsen against Niels Omanson to quiet title. From a decree for plaintiffs defendant appeals. [The transcript of the record in this case does not show any notice or undertaking on appeal, or any certificate of attorneys or of the clerk of the lower court.

H. C. Smith, Judge. Action by Selz, Schwab & Company, a corporation, against James Tucker and H. 0. Wallace for goods sold and delivered. The court overruled defendants’ general demurrer and entered judgment upon default, from which .defendants appeal. Defendants can appeal from a judgment by default. Howard v. Galloway, 60 Cal. 10; Hallock v. Jaitdin, 34 Cal. 173; 1 Black on Jdgs. § 95. On demurrer the appeal must be taken from the judgment.

James A. Miner, Judge. Action by Sophia Y. Benson against Nicholas Anderson and another to quiet title. From a decree for defendants, plaintiff appeals. The appeal in this case was dismissed June 9, 1893, on the ground that no undertaking had been filed. See opinion per Smith, J., 9 Utah, 164. .Jüne 20, 1893, petition for a rehearing was denied. June 26, 1893, undertaking on appeal filed and also motion to reinstate appeal. October 28, 1893, appeal reinstated.

■ Appeal from the district court of the first judicial district. Hon. H. W. Smith, Judge. Action by L. E. Biter and W. G. Yan Horne against the Sun Foundry & Machine Company and A. A. Noon. Plaintiffs recovered judgment against the company only. From the judgment in favor of A. A. Noon, plaintiffs appeal.

Miner, Judge. Charles H. Larsen appeals from a conviction of assault. An arrest or an indictment under the law is nothing more than a mere accusation. The question as to whether defendant had ever before been arrested for a similar crime was not permissible.

Charles S. Zane, Judge. Action by the American Publishing Company against A. Fisher and Aaron Keyser, copartners under the firm name of A. Fisher Brewing Company. From a judgment for the defendants’, plaintiff appeals. ■ The circumstances alleged must, if proved, necessarily and at all events, constitute fraud. The case must not he left to mere interference. 1 Bigelow on Frauds, 114. It must be shown in what the fraud consists and how it has been effected. 8 Am. & Eng.

G-. W. Bartch, Judge. Action by John M. Young against A. T. Schroeder and wife to obtain a decree adjudging certain deeds,, executed by the IT. S. marshal pursuant to certain execution sales, to be fraudulent, and that the plaintiff be permitted to redeem from such sales, notwithstanding the statutory time for redemption had expired, and that the defendants be required to convey to him the property mentioned and described in said deeds.

S. Zane, Jitdge. Action by Elizabeth B. Tucker and her husband against Salt Lake City for damages for personal injuries to the wife caused by a defective sidewalk. From a judgment for plaintiffs, defendant appeals. The court erred in allowing the witnesses to give their opinion as to whether or not the sidewalk was dangerous. It is a pure question of fact, and not of science or skill, and expert testimony is not proper and the opinions of witnesses are inadmissible.

George W. Bartch, Judge, Action by the Fred W. Wolf Company, a corporation, against the Salt Lake City Brewing Company, a corporation. From a judgment for plaintiff, defendant appeals. Appellant propounded and discussed the following propositions: First — Has the legislature power so to change the law in relation to juries as to provide that petit juries may be composed of a less number than twelve?

James A. Miner, Judge. The facts are-stated in the opinion. Action by John Evans against R. H. Jones to recover on a promissory note. From a judgment for plaintiff, defendant appeals.

George W. Bartch, Judge. Action by the United States against Henry G. McMillan, late clerk of the Third Judicial District Court, and John J. Daly and Worden P. Noble, sureties on his official bond. From a judgment sustaining a demurrer and dismissing the complaint, plaintiff appeals. The facts are stated' in the opinion.

George W. Bartch, Judge. Action by Joseph E. Gallagher, William H..Remington and Geo. M. Scott against the Yosemite Mining and Milling Company. From a judgment for plaintiffs affirming the report of D. C. Lyles, referee, defendant appeals. The facts are fully stated in the opinion.

Charles S. Zane, Judge. Action by Charles T. Nelson against The Salt Lake Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Considering the circumstances of this case, the damages .awarded were very small. In a very similar case, Lake Frie Ry. Go. v. Fixe (11 Am. and Eng. Ry. Cases, 109, 114), a verdict for $600 was allowed to stand. In Du-Laurens v. St. P. &, P. Ry. Go. (15 Minn. 59), $500 was held not excessive.

James A. Miner, Judge. Action by Simon Ottenberg and others against Charles D. Barnes and others. From a judgment sustaining a demurrer and dismissing the complaint, plaintiffs appeal.

<p>Appeal from the District Court of the Third Judicial District, Hon. Samuel A. Merritt, Judge.</p> <p>Thomas Hart was convicted of house-breaking, and appeals.</p>

Geo. W. Bartch, Judge. Action by William S. McOornick against Henry Sadler ■on an assignment of the balance of a contract price for a building. From a judgment for plaintiff, defendant appeals.

<p>1. ARSON. — Testimony Unconnected. — Instructions.—Error.— On the separate trial of a defendant indicte’d jointly with the owner of a building for burning the same, the prosecuting attorney in his opening statement said he would show that there was a conspiracy between the defendant and the owner to burn the building in order to obtain the insurance. Testimony was allowed over defendant’s objection that the building was insured and that the owner made certain statements with neither of which was defendant shown to be connected. The court refused to strike out this testimony, or to instruct the jury that there was no connection between defendant and owner. Held, error.</p> <p>2. Circumstantial Evidence. — Duty of Court to Charge.— Where the testimony in a criminal case is entirely circumstantial it is the duty of the court to charge upon the law of the subject, though the request offered by defendant on this subject was erroneous.</p>

Charles S. Zane, Judge. Claim and delivery by Louis Brown and others, as Brown Bros. & Co., again-st E. H. Parsons. There was a judgment for defendant, and from an order denying plaintiffs’ motion to set aside the same, they appeal. The motion to vacate the judgment, filed before the expiration of the term, is a direct attack upon the judgment, is proper, if not the only proceeding, available to appellants. Vilas v. R. R. Co., 123 N. Y. 440, 20 Am.

Hon. James A. Miner, Judge. Action by Phyllis M. Cook against Geoi’ge Higley, Jr., and another to recover possession of a homestead. The court sustained defendants’ demurrer, and plaintiff electing to stand by her complaint, judgment was entered, from which she appeals.

H. W. Smith, Judge. Action by the Mammoth Mining Company, a corporation, against the county of Juab and another, to recover a tax paid under protest under an unlawful levy. ' From a judgment for defendants, plaintiff appeals. Cited: Suth. Stat.

Charles S. Zane, Judge. Action by Lewis A. Scott Elliot against George 0. Whitmore and another for an injunction and for damages. Defendants appeal from an order refusing to fix the amount of a supersedeas bond to stay the injunction pending appeal. The defendants being in possession of the property in dispute, the decree in the case is substantially one to compel the defendants to deliver that property over to plaintiff, and directed how it should be done.

George W. Bartch, Judge. Application by Lewis A. Scott Elliot for the arrest of George 0. Whitmore for contempt of court for violating the decree and injunctional order by destroying a measuring box put in a ditch for the , purpose of distributing water, and for. diverting the water of the stream in excess of the amount awarded him by the decree. Defendant was found guilty. From “the order denying a new trial, he appeals.

Charles S. Zane, Judge. Action by Lewis A. Scott Elliot against George C. Whit-more and another for damages and an injunction. From an order dismissing and denying defendants’ motion for a new trial, they appeal. The statute under which this statement is prepared and under which the orders extending the time were made, is 2 Comp. Laws 1888, § 3402, subd. 3 and § 526.

Charles S. Zane, Judge. Application for a writ of mandate by George C. Whit-more against J. H. Harris, referee, to compel him to sign a statement on motion for a new trial in the case of Leivis A. Scott Elliot v. George G. Whitmore, and another. From a judgment denying the writ, petitioner appeals.

Miner, Judge. Action on a promissory note by Eichard Flint against A. H. Nelson, Frank J. Cannon and A. H. Cannon. From a judgment for plaintiff, defendants appeal. The opinion states the facts except that the rules of the court of the Fourth Judicial District required a request for instructions to be presented to the court before the charge had been given by the court to the jury.

James A. Miner, Judge. Action by H. C. Hansen and others against Mark Fletcher and others, to recover the possession and quiet the title of a mining claim, and for an injunction for trespassing upon the same. From 'a judgment for defendants, plaintiffs appeal.

Hon. James A. Miner, Judge. Action by James H. Spargo against Fritz E. Nelson, the Eccles Lumber Company and others, to foreclose a mortgage and to hare the same decreed a superior- lien to that of the Eccles Lumber Company, and to restrain and enjoin the Eccles Lumber Company and G. R. Belknap from selling tbe property covered by the mortgage under a mechanic's lien foreclosure. From a judgment for plaintiff, the Eccles Lumber Company and G-. E. Belknap appeal.

James A. Miner, Judge. Action by Edward 0. Allen against Logan City for •damages for personal injuries.

Bartch, Judge. Action by L. W. Bacon against John H. McChrystal and Noah McChrystal to recover money paid John H. McChrystal under a parol contract for the sale of certain land by the lattér to plaintiff. ' From a judgment for plaintiff against defendant, John H. McChrystal, the latter appeals.

Hon. George W. Bartch, Judge. Action by Thomas Cupit against the Park City Bank. From an order granting a motion to discharge the attachment and overruling a motion to -strike defendant’s notice of motion and affidavit from the files, plaintiff appeals.

. Appeal from, the District Court of the Fourth Judicial District. Hon. James A. Miner, Judge. Action by L. E. Chamberlain against W. W. Watters and the board of education of Ogden City, garnishee. From a judgment against defendant Watters, but in favor of the board of education, plaintiff appeals.. Under a proceeding supplementary to execution, under § 3455, 3 Comp. Laws 1888, the board of education of Ogden City was garnished.

Hon. S. A. Merritt, Judge. Action by Jacob A. Dupee against Frederick W. Eose to foreclose a trust deed. From a judgment sustaining a demurrer to the complaint and dismissing the same, plaintiff appeals. Two questions are submitted to the court. First — Is not the trust deed containing the usual provisions and covenants found in snob instrument a mortgage and subject to foreclosure in a court of chancery.

Zane, Judge. Action by Orson H. Pettit and others against Harry T. Duke, treasurer of Salt Lake City, to enjoin the collection of a sprinkling tax by local assessment. From a judgment sustaining a demurrer and dismissing the complaint, plaintiffs appeal. Municipal corporations can levy no taxes, general or special upon the inhabitants or their property unless the power be plainly and unmistakably conferred. 2 Dillion, Mun.

Hon. Charles S. Zane, Judge. Action by Orson H. Pettit and others against E. E. Clute, assessor and collector of Salt Lake City, to enjoin the collection of a sprinkling taz levied by local assessment. From a judgment for defendant, plaintiffs appeal.

George W. Bart eh, Judge. Action by the Cary-Lombard Lumber Company against Charles Sheets and Thomas W. Partridge to foreclose a mechanic's lien. From a judgment ior plaintiff, defendants appeal. The opinion states the facts except that no notice of intention to hold and claim a lien before furnishing any material had been served or filed by the plaintiff under § 12, Session Laws 1890, ch. 30.

Hon. S. A. Merritt, Judge. Action by Boyd Park against Elias H. Parsons and another to recover the value of goods alleged to have been wrongfully seized and converted by defendants. From a judgment for plaintiff, defendants appeal. An indemnity mortgage cannot be foreclosed until the mortgagee has been compelled to pay money or is dam-nified. 7 Ind. 213, 652; 5 Ind. 152; 10 Mich. 124; 21 Conn. 127; Wiltsie on Mtg. Fore. pp. 28, 50; 7 B. Mon. 336.

Appeal, from the District Court of the Fourth Judicial District, Hon. James A. Miner, Judge. Action in ejectment by the Neponset Land and Live .Stock Company against Julia I. Dixon and George Eastman, Sr., her guardian. From a judgment for defendants, the plaintiff appeals.

S. A. Merritt, Judge. Action by the Mexican International Banking Company, a corporation existing under the laws of the Republic of Old Mexico against Henry Lichtenstein for money… Held: under the laws of Tennessee, which prohibited the sale of lottery tickets, that the contract cannot be enforced. In the other case, the court held that the tickets were sent to be sold in violation of law and that both parties were at fault and that it would leave them where it finds them.

S. A. Merritt, Judge. Attachment by Barton Brothers against South Jordan Co-operative Mercantile and Manufacturing Institution. From a judgment that the lien of plaintiffs5 attachment was junior to the lien of another attaching creditor, plaintiffs appeal. The doctrine of idem sonans furnished the true test as to whether or not the variance is substantial and fatal. Rolson v. Thomas, 55 Mo. 582; Flood v. Randall, 72 Me. 440; Whelen t. Weaver, 93 Mo. 432.

H. W. Smith, Judge. Action by Springville, a municipal corporation, against Don C. Johnson, to quiet title to land and to have a tax sale thereof declared illegal and void. From a judgment for plaintiff, defendant appeals. The land involved was held by the city for no public purpose, and is liable for county and territorial taxes.

S. A. Merritt, Judge. Action in tbe nature of a quo warranto, at the relation of Walter Murphy, county attorney, on the complaint of Alma S. Kendall against James G. McAllister to test the right of the latter to hold the office of inspector of provisions for Salt Lake City. From a judgment sustaining a demurrer to the complaint and dismissing the same,, plaintiff appeals.

Charles S. Zane, Judge. Action by Harriet Tuttle Drake and others against Rachel Reggel and others to recover certain lands in Salt Lake City. From a judgment for defendants, plaintiffs appeal.

Hon. George W. Bartch, Judge. Action by Joseph Ruffatti against Société Anonyme Des Mines De Lexington and another to recover damages for breach of contract. From a judgment for plaintiff against the company, it appeals.

Hon. James A. Miner, Judge. Action by Emil A. Stahn against C. D. Hall and others-to reform a deed. From a judgment for plaintiff confirming the report of M. D. Lessenger, referee, defendants appeal.

Hon. James A. Miner, Judge. Proceeding under 2 Comp. Laws 1888, § 3450, by Esther Broom, administratrix of the estate of John Broom, ■deceased, against Mills H. Beardsley to revive the judgment in the case of the of Ogden against Mills H. Beardsley. From a judgment of revival in favor of the administratrix for the sum of $9,568.37, defendant appeals.

Samuel A. Merritt, Judge. Action by Joseph B. Toronto against Salt Lake County to recover a balance due him for services as county treasurer of such county. The court sustained plaintiff’s motion to strike out part of answer and for judgment on the pleadings and rendered judgment in his favor for the full amount claimed. From which judgment, defendant appeals.

„ Appeal from the District Court of the Third Judicial District. Hon. Charles S. Zane, Judge. Action by William H. Whitehill against William Lowe, administrator of the estate of George A. Meears, deceased, Walker Brothers and the Meears Mining Company, defendants, to enforce the specific performance of a contract between plaintiff and defendant Meears — to compel defendants to transfer to plaintiff certain shares in the Meears Mining Company.

Hon. Chas. S. Zane., Judge. Action by Julian Riley against the Salt Lake Rapid Transit Company to recover damages for the death of plaintiff’s minor son, caused by defendant’s negligence. From a judgment for $5,000 entered on the verdict of the jury in favor of the plaintiff, defendant appeals. unless plaintiff remits $2,000 of the judgment.

James A. Miner, Judge. Action by Perry C. West against the Norwich Union Fire Insurance Society to recover the amount of an insurance policy. From a judgment for plaintiff, defendant appeals. The uncontradicted proof shows that respondent has other or additional insurance, and that permission therefor was not endorsed upon the policy sued upon and for that reason he cannot recover. Van Tassel v. Ins. Go., 27 Atl. Eep. 641; Carpenter v. Ins. Go., 16 Pet. (U. S.) 495-511; Ins.

Hon. James A. Miner, Judge. Action by the Oregon Short Line and Utah & Northern Bailway Co. against Hyrum Standing, county collector of Box Elder county, to enjoin him 'from selling certain personal property for the collection of an illegal tax. From a judgment for plaintiff,• defendant appeals. Cited: Sedgwick Stat. Const, pp. 231-2, 250-8; Yattels Bules, Id. p. 269; Cooley on Tax. 264; Dwarris, p. 632.

George W. Bartch, Judge. Action by A. F. Lawson and John L. Lawson, co-partners as Lawson Brothers, against Alfred Thompson to recover commission for the sale of certain real estate. From a judgment for plaintiffs, defendant appeals. In addition to the facts stated in the opinion, it may be well to notice 2 Comp.

George W. Bartch, Judge. Action by Thomas McCharles against the Horn Silver Mining & Smelting Company, a corporation, to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. The issue tendered by defendant is that if plaintiff sustained any injury it was entirely through his own negligence and the negligence of his fellow servants.

James A. Miner, Judge. Bill in equity brought by the Ogden Paint, Oil & Glass Company against Warren G. Child and another in aid of an execution. From a decree for plaintiff, defendants appeal. Cited: McRea v. Bank, 19 How. 376; Hardt v. Ileid-weyer, 152 U. S. 547, 38 L. Ed. 548; Badger v. Badger, 69 TJ. S. 87; Ooden v. Kimmell, 99 U. S. 201, 211; Wood v. Carpenter, 101 TJ. S. 135, 140; Lansdale v. ¿Smith, 106 TJ.

Charles S. Zane, Judge. Action bj Jens Olsen against Hyrum Bagley to set aside a tax sale and to remove a cloud from certain real estate. From a judgment for plaintiff, defendant appeals.