Volume 11 — South Dakota Reports

Hon. Frank B. Smith, Judge. Action by M. E. Distad against Harry A. Shanklin. Verdict for plaintiff, and from an order granting plaintiff’s motion for a new trial defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Spink county. Hon. Loring E. Gaffy, Judge.</p> <p>Action by the Farm & Colonization Company, Limited, against James H. Meloy, Sarah A. Meloy, T. W. Child and Spink county to determine conflicting claims to 'real property. There was a judgment for defendant T. W. Child, and plaintiff appeals.</p> <p>The facts are stated in the opinion,</p> <p>The plaintiff was entitled to be subrogated to the rights of the original mortgage and having obtained title under the foreclosure of his mortgage the defendant Child has no further interest in the property. Kelschauer v. Upton, 6 Dak.,- 449; Baker v. Baker, 2 S. D. 261; Bank v. Clute, 21 N. E. 1021; Clute v. Emmerick, 2 N. E. 6; Denton v. Tyson, 24 S. E. 116; Blair v. Monts, 24 S. E. 621; Bank v, Meyers, 44 Pac. 292; Crippen v. Chappel 35 Kan. 495; Yaple v. Stevens, 35 Kan. 680; Banking and Trust Co. v. Peters, 18 So. 497. One who at the instance of the debtor advances money to be used by the debtor in payment of a prior security is not a stranger or intermeddler in his affairs. Sheldon Subr., § 247; Welton v. Mayberry, 43 N. W. 901; Emmert v. Thompson, 49 Minn. 386; Johnson v. Barrett, 19 N. E. 199; Gilbert v. Gilbert, 39 la. 657; 3 Pom. Eq. Juris. § 1212, The fact that the mortgage was paid and intended to be paid is immaterial. Equity will consider it yet alive so long as the rights of parties require. Walker v. King, 45 Vt. 525; Cobb v. Dyer, 69 Me. 494; Wheeler v. Willard, 44 Vt. 640; Barnes v. Mott, 64 N, Y. 397; Loan Co. v. Blalock, 13 S. W. 12; Crippen v. Chappel, 11 Pac. 453; Causler v. Sallis, 54 Miss. 446. Where a release of an original mortgage has been' placed upon record by mistake, equity will reinstate the original mortgage and the parties who furnished the money to pay it taking a mortgage for security are subrogated to all the rights of the original mortgages. Emmerick v. Thompson, 52 N. W. 31; Draper v. Ashley, 62 N. W. 707; Thompson v. Ins. Co., 38 N. E. 796; Mortgage Co. v. Tracy, 59 N. W. 1001; Frisbee v. Frisbee, 29 Atl. 1115; Ploeger v. Johnson, 26 S. W. 432; Henser v. Sharmon, 56 N. W. 16; Whitsell v. Loan Agency, 27 S. W. 309; Fears v. Albra, 6 S. W. 286; Rappineir v. Ban-non, 8 Atl. 555; Milhulland v. Tiffany, 2 Atl. 831; Morgan v. Hammett, 23 Wis. 30; Bodkin v. Merit, 1 N. E. 625.</p>

<p>Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge.</p> <p>Action by the Northwestern Mortgage Trust' Company against William W. Bradley and another. From an order vaeating a previous order awarding judgment for plaintiff unless cause be shown, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

Hoh. A. J. Plowman, Judge. Action by George W. Hulst and Virgil T. Price against Isaiah H. Doerstler, to determine the right of possession to certain mineral land. From a judgment for defendant, and an order denying a new trial, plaintiffs appeal. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by Bridget Murray against Azro B. Leonard for damages for assault and battery. From a judgment and an order denying a new trial, defendant appeals. The facts are stated in the opinion. The court cannot substitute its judgment for the verdict of a jury upon a question which the jury alone could determine.

Hon. J. W. Jones, Judge! Action by the Western Twine Company against C. D. Scott and J. Leslie Thompson, co-partners, on certain promissory notes. There was a judgment for defendants, and plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph N. Jones Judge. Action by John H. Van Dyke against Melvin Grigsby and Porter Peck to cancel a notice of lis pendes filed in a former action and to vacate and set aside a warrant of attachment issued in said action and the levy made thereunder and to quiet title to certain lands. From a judgment for defendant plaintiff appeals. The facts are fully stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by Polina Randall and others against Burk township,- Minnehaha county, and others, to enjoin the opening of roads and assessment of property with reference to an alleged incorrect survey. From a judgment for defendants, plaintiffs appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Lake county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Earnest P. Mueller against the Madison Building & Loan Association. Judgment for plaintiff. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

E. G. Smith, Judge. Action by Hance Murphey, trustee for the benefit of creditors and others, against E. W. Cook, administrator, etc., tore-cover certain real property. Prom a judgment in favor of defendant, plaintiffs appeal. The facts are stated in the opinion.

<p>A debtor conveyed property to defraud creditors, receiving its value in ‘cash and notes. The grantee, at the debtor’s request, mortgaged the property, and used the money in paying a bona fide debt of the debtor, who’credited the grantees’notes with the amount. Held, that the grantee would be relieved from claims of other creditors, to the extent of such payment.</p>

<p>Laws 1897, Chap. 55, amending Comp. Laws, Seo. 5213, so as to prohibit appeals from circuit to supreme court in actions for the recovery of money where the amount recovered is $75 or less, or for the recovery of personal property of that value or less, and not including in its provisions certain county courts having concurrent jurisdiction with the circuit courts, violates Const. Art. 5, Sec. ,34, requiring-that the laws relative to courts shall be general and of uniform operation throughout the state.</p>

Frank B. Smith, Judge. Mark Williams was convicted of selling intoxicating liquors without a license, and he brings error. The facts are stated in the opinion. The information is insufficient. (1) It does not describe a public offense or notify the defendant of the facts and circumstances of the offense charged. State v Butcher, 44 N. W. 239; State v Burchard 4 S. D. 548; Goddy v State, 8, Tex. App. 127.

. Hon. A. J. Plowman, Judge. Proceedings by Lawrence county to locate a public highway. Prom the action of the county commissioners ratifying the assessment for damages, Ellen Scott and the Deadwood & Gayville Toll Road Company appealed to the circuit court, from whose' decision in favor of the county they appeal. The facts are stated in the opinion. The county by its condemnation proceedings admitted the right of appellants and the validity of their toll road.

Original action in this court to recover from the state of South Dakota for services rendered as an attorney. The facts are stated in the opinion,

<p>Appeal from circuit court, Brookings county, Hon. J. O. Andrews, Judge.</p> <p>Action by John Hermiston and another, as Hermiston Bros, against M. D. Gr.een and John Jamison to recover the balance due on a contract. From a judgment for plaintiffs, defendant Green appeals.</p> <p>The facts are fully stated in the opinion.</p>

Hon. Joseph W. Jones, Judge. Action by the' state to recover on the official bond, of the • county treasurer of McCook county, S. D., the amount of certain state taxes collected by him and not received by the state treasurer. Defendants appeal from an order overruling a demurrer to the complaint. The facts are stated in the opinion.

<p>1. Under Comp. Laws, See. 5088, providing that motion for new trial on the ground of newly-disoovered evidence shall be granted only where the party applying could not with reasonable diligence have produced it at the trial, a new trial will not be granted where no excuse is shown for failure to secure such evidence or a continuance of the cause.</p> <p>2. In an action by a mortgagee for the conversion of grain,, it is competent ' to show the amount' of grain grown on the land covered by the mortgage.</p> <p>8. A person living in a grain growing country, who has seen a farm, is competent to testify as to the condition of a crop on it.</p> <p>4. Where the uncontradicted evidence shows the pendency of another action involving the same issues, it is not error to exclude the summons and complaint in such action.</p> <p>5. It is immaterial, in an action for conversion, that another action is pending between plaintiffs and other defendants involving the same issues.</p>

Hon. A. W. Campbell, Judge. Action by Anton Meuer against the Chicago, Milwaukee & St. Paul Railway Company to recover for personal injuries received while shipping stock over defendant’s road. Prom a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The presumption is that there were statutes in Wisconsin similar to those of Dakota at the time the contract was made. There was not sufficient proof to overcome this presumption. Comp.

<p>1. A rehearing upon questions not discussed by counsel in their briefs or presented by assignments of error will be permitted where the circumstances are exceptional, and the question is raised for the first time in the court.</p> <p>2. A statute which provides a special proceeding- applicable to only a part of the counties is unconstitutional.</p> <p>3. Laws 1893, c. 64, repeals all acts and parts of acts inconsistent with itself. Section 1 provides that “the county court of each county having a population of twenty thousand or over, shall have jurisdiction in all civil actions cognizable by a'justice of the peace, except * * * and exclusive original jurisdiction in all matters of probate, guardianship and settlement of estates of deceased persons.” Section 2 provies that “in all counties having a population of less than twenty thousand the county court shall have exclusive original jurisdiction in all matters of probate, g-uardianship and settlement of estates of deceased persons, and no other jurisdiction whatever.” Held, that the bastardy act of 1893, giving county court jurisdiction in bastardy proceedings, was repealed by this statute.</p>

> Hou. Loring E. Gaffy, Judge. On motion for rehearing. Action in claim and delivery.' In an opinion reported in 9 S. D. 550; 70 N. W. 874, the judgment of the trial court was modified. Fuller, ■ Judge, concurring specially, Haney, Judge, dissenting.

<p>1. A municipal action for violating an ordinance is not a criminal action, and hence not governed by the rules of criminal pleading.</p> <p>2. In an action in a police court for violating an ordinance, the complaint is not defective on the ground that it does not state with certainty the persons charged with the offense, where the caption reads, “The City of L. vs. J. K and L. K.,” and the accompanying affidavit refers to them as “said defendants.”</p>

Hon. A. W. Campbell, Judge. Action by the state against David. Davis and Charles F. Schnepf, upon a forfeited undertaking in a criminal proceeding. From an order overruling a motion to set aside the satisfaction of a judgment obtained on the forfeited undertaking the state appeals. The facts are stated in the opinioh. The board of county commissioners had no power to settle or compromise the judgment. Commissioners v. Barnes 30 Am.

Hon. Joseph W. Jones, Judge. Action by the Dell Rapids Mercantile Company against the city of Dell .Rapids to recover damages alleged to have been occasioned by a sewer negligently constructed and kept in bad condition and repair by the defendant. There -was a judgment for plaintiff, and defendant appealed. The facts are stated in the opinion. Appellant is not liable for the damages sustained even though the sewer was unskilfully constructed and negligently maintained.

E. G-. Smith, Judge. Action by the township of Riverside against Alfréd Newton to establish a highway upon a section line. From a.judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. Under and by virtue of the provisions of the statutes of the.

Hon. A. J. Plowman, Judge. • Action by Horace K. Thurber against Mary C. Miller and others to foreclose a mortgage. Prom a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. The lower court should have found that appellant duly presented verified proof of his claim to the trustees and executors of the last will of James K. P. Miller and that the estate is therefore liable for deficiency on foreclosure.

Hon. J. W. Jones, Judge. Action by B. F. Campbell against the Minnehaha National Bank of Sioux Falls to recover dividends upon certain bank stock. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>Suit by W. N. Coler & Co. and others against Edward Sterling,' treasurer of Beadle county. From a judgment for plaintiffs, defendant appeals.</p>

Hon. E. G. Smith, Judge. Action by the Edinburgh-American Land Mortgage Com pany, Limited, against Bridget No.onan, Michael Noonan, J. H. Queal & Co., a corporation duly organized and existing under the laws of the state of Minnesota, H. S. Gamble, and the Leavitt & Johnson Trust Company, a corporation duly organized and existing under the laws of the state of Iowa, to foreclose a mortgage. Prom a judgment dismissing complaint, plaintiff appeals.

<p>Laws 1897, Chapter 102, imposing- a license fee on solicitors taking orders for mercantile establishments, violates the interstate commerce clause of the constitution of the United States, as against a salesman for a house in another state selling clothing by sample, to be made up from measurements taken by the salesman; and this although there is no discrimination as to the amount of the,fee between resident and nonresident establishments.</p>

Hon. Julian Bennett, Judge. Action by C. Livingston against school district No. 7 of Brookings county, to recover the value of a school house. From an order overruling a general demurrer to the complaint, defendant appeals. The facts are stated in the opinion.

Hon,. J. O. Andrews, Judge. Action in claim and delivery by W. H. Owen and C. A. Margeson, partners as Owen & Margeson, against the Burlington, Cedar Rapids & Northern Railway Company. From a judgment for plaintiffs, defendant appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action in forcible entry and detainer, by H. C. Torrey against Herman Berke. From a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. The reassignment executed to the bank operated to vest the title to the property in controversy to the bank notwithstanding any alterations that may have beeD made in the instrument subsequent to its delivery. §§ 3245, 3617, 3228, 3229, 3231, 3593 Comp.

Hon. E. G-. Smith, Judge. Action by Thos E. Reedy against A. W. Howard. From an order sustaining a motion to quash service of summons and dismiss the action, plaintiff appeals.

<p>Appeal from circuit court, Faulk county. Hon. Loring E. 'Gappy, Judge.</p> <p>Action by William Peering & Co. a,gainst J. L. Sechler, upon a promissory note. From a a judgment in favor of plaintiff, defendant appeals.</p> <p>The facts are stated in the opinion.</p>

E. G. Smith, Judge. Suit by Yaukton county against Anton Klemisch to restrain defendant from further obstructing or interfering with the removal of obstructions placed by him on a public highway Prom a decree in favor of plaintiff, defendant appeals. The facts are stated in the opinion. The complaint is insufficient upon which to base an order of injunction for the reason that the description of the alleged highway is too indefinite.

<p>1. Comp Laws, § 6449, provides that persons convicted of murder shall suffer death or impi’isonment for life, at the discretion of the jury. Section 7359 provides that, if the punishment be death, a challenge for implied bias may be made to jurors who entertain conscientious opinions against capital punishment. At the time of the enactment of section 7359 the death penalty was the only punishment for murder. Held, that while a juror ma.y no longer be challenged for holding opinions against capital punishment, yet he may be a-ked as to the holding of such opinions as a basis for a peremptory challenge,</p> <p>2. Deceased was seen with a small tobacco sack, containing money, some weeks before his death. After the discovery of the crime a similar sack was found in a building occupied by defendant, where deceased was killed. Held, that it was not error to receive the sack in evidence, where the building was carefully guarded after the discovery of the crime, as the question of the identity of the sack was for the jury.</p> <p>3. Where the crime was discovered about 1 o’clock in the morning, it was proper to show that deceased, at about 5 o’clock on the preceding afternoon, in a store two blocks from the scene of the crime, stated that he was going to defendant’s place, where his body was aftewards found, and was afterwards seen going in that direction.</p> <p>4. The act of defendant in exhibiting money between the time deceased was last seen alive and the discovery of his body at the house of defendant may be shown by the state.</p> <p>5 A test tube, containing pieces of cloth cut from the pocket of overalls worn by deceased at the time of his death, was examined by an expert, who testified that they contained blood stains, but was unable to say that it was human blood. The pieces were cut several weeks after the commission of the crime. The purpose of the evidence was to show that the person who did the killing had rifled deceased pockets with bloody hands. Held, that there was such uncertainty as to what caused the stains as to deprive them of any evidentiary value.</p> <p>6. A state’s attorney, in his address, to the jury, may not state what writers on criminology tell as to the effect of the repeal of statutes inflicting capital punishment on the increase of crime, where there is nothing-but the attorney’s assertion as to what these writers say, and nothing to show that their opinions are well founded.</p> <p>7. The state’s attorney in his address to the jury, said: “It is not against the defendant that ho did not go on the stand, because he was not compelled to.” On an exception being taken, the court said: “You must not go into that. I cannot allow you to make any comment whatever upon that subject.” The court did not allude to the matter in his instructions. Held, that the error was not cured by the court’s remark.</p>

Hon. E. G. Smith, Judge. Certiorari proceedings by Dirk Van den Bos against the board of commissioners of Douglas county and others. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. Neither the writ nor the application therefor showed that plaintiff had any personal interest in the matters complained of..

Hon. A. J. Plowman, Judge. Action, by Charles W. Mather against Aaron Dunn, to recover possession of a mining claim, and another. There was a judgment for plaintiff. From an order granting a new trial, plaintiff appeals. The facts are stated in the opinion. One tenant in common may bring and maintain a suit in ejectment against a stranger without joining his co-tenant.

E. G Smith, Judge. Action by William Erpenbach against the Chicago, Milwaukee & St. Paul Railway Company. From an order dismissing an appeal from an order and judgment of a justice of the- peace refusing to vacate a default judgment against it, defendant appeals.

Hon. William Gardner, Judge. Action by Elmer E. Crow against Lafayette Zollars, as sheriff of Pennington county, for the alleged conversion of certain personal property. Prom a judgment directing a ver diet for defendant, plaintiff appeals. The facts are stated in the opinion. Where • the instrument is silent as to the location of the property mortgaged, the presumption is that the property is situate in the county where the mortgage was executed.

Hon. Frank B. Smith, Judge. Action by S. E. Wilson against George Gabler to enjoin the maintenance of a certain ferry. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by Melissa J. Dillaway against George R. Peterson, John H. Chapman, and others, to foreclose a mortgage. Prom a judgment in favor of plaintiff against Chapman only, she appeals. The factss are stated in the opinion. The agreement between the defendants Chapman and Spalding contains all the elements of a partnership agreement and constituted them co-partners.

<p>Appeal from circuit court, Lawrence county. -Hon. A. J. Plowman, Judge.</p> <p>Action by William Giles and others against the Hawkeye Gold-Mining 'Company and others. Judgment for plaintiffs, and defendant Anson Higby appeals.</p>

Hon. J. O. Andrews, Judge. Action by Franklin Issenhuth against Martin Baum and another to recover damages for the alleged wrongful removal of a fence and the excavation of earth for the purpose of constructing a highway. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by John McClain against A. J. Williams in claim and. delivery. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.

Hon. Loring E. Gaffy, Judge. Action by Wm. F. Baird and others, co-partners as Baird, Burke & Brown, against William H. Gleckler, for services performed in effecting a contract for the saie of land. From a judgment for defendant, plaintiffs appeal. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by Charlotte Johnson against Arthur J. Glidden, for damages in consequence of the alleged negligent use of a gun by defendant’s minor child. From a judgment on a verdict in favor of plaintiff, and from an order overruling his motion for a new trial, defendant appeals. The facts are stated in the opinion. Neither parent nor child is answerable as such for the acts of the other. Comp. Laws, § 2620.

Hon. A. W. Campbell, Judge. Action upon contract for services by Isaac W. Cranmer against Joseph Kohn and another. There was a judgment for plaintiff, and defendants appeal. The facts are stated in the opinion.

, Hon J. O. Andrews, Judge. ’ , , Claim and delivery by the McCormick Harvesting Machine Company against John R. Woulph. From a judgment for defendant, plaintiff appeals. The faqts are stated in the opinion,

Hon. Joseph W. Jones, Judge. Action by F. C. Danforth against McCook county -and another to cancel a certificate of tax sale. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The factg are stated in the opinion. The land in question having been entered under the timber culture laws and final proof having been made and final certificate issued it was subject to taxation. U. S. Laws Act June 14, 1878, 20 U. S. Stat. at Large 113.

Hon. A. J.Piowman, Judge. Action by James B. Reagan and another against John C. McKibben and another to compel the conveyance of certain mining property. From a judgment in favor of defendants and an order denying a motion for a new trial, plaintiffs appeal. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action by W. C. Hollister against Agnes C. Buchanan to recover upon a promissory note. From a judgment for appellant, plaintiff appeals. The facts are stated in the opinion.

<p>1, Plaintiff filed a petition to compel defendant to comply with an order of the railroad commissioners directing defendant, to establish a daily passenger train between certain points on its line. The petition set up a petition by citizens along the defendant’s line to the railroad commissioners, the order made by the board, and also a report filed on the hearing by defendant showing the receipts from that portion of the road, and the expense of running a separate passenger and a mixed train over the line. Defendants answer admitted the filing of the petition, the hearing thereof, the estimate of the expense óf additional train service, and the order made by the board; but expressly denied the truth of the matters set out in the petition, resolution, findings, and order, and alleged that the business of its road did not warrant the running of a daily p'assenger train on that line. Held, that the denials in the answer put in issue all the material allegations of the petition, and judgment on the pleadings could not be entered for plaintiff.</p> <p>2. Under Laws 1897, c. 110, § 19, providing that, whenever a.ny common carrier shall neglect to obey a lawful order of the board of railroad commissioners, it shall be the duty of the board to apply in a summary way, to the circuit court to compel obedience to the same, and the court shall hear and determine the matter as a court of equity, without formal pleadings and proceedings applicable to ordinary suits in equity, hut in such manner as to do justice, and may make all inquiries needful, a judgment for petitioner on the pleadings is properly denied, since it is doubtful whether the court could in any case enter judgment without first ascertaining the facts upon which the order of the board was made.</p>

Hon. E. G. Smith, Judge. ’ ■ Action by Graddy Hirsch against Adam Schlenker to recover the balance due upon a contract. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.

A. W. Campbell, Judge. Action by the. board of education of Webster independent school district, No. 101 (a corporation), against Charles H. Prior, to determine the amount of compensation to be paid the owner of real property for property appropriated for the use of a school district. From a judgment assessing defendant’s damages, he appeals. The facts are stated in the opinion.

Hon. Frank B. Smith, Judge. Action by Brule county against Martin K. King to recover personal taxes. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by Eugene S. Gage against Luther S.-Gage. There was a judgment for defendant, and an order denying a new trial, and plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by Frank Dunn against the National Bank of Canton, to recover upon a certificate of deposit, in which J. A. Keller intervened. From a judgment on a verdict directed in favor . of plaintiff, and from an order denying a, new trial, defendant and intervener appeal. The facts are stated in the opinion.

,Appeal from circuit court, Hughes county, Hon. Loring E. Gappy, Judge. Action by Wm. Fisher and John Farnsworth against Walter R. Porter and others in claim and delivery for certain cattle. There was a judgment for defendants and plaintiffs appeal. The facts are stated in the opinion.

<p>1. Under Const. Article 11, § 9, declaring that no indebtedness shall be incurred by the slate except in pursuance of an appropriation for the specific purpose first made; and Laws 1890. Chap. 108, providing- that, where appropriations are made for periods longer than one year, the. expenditures for one year shall never exceed the proportion which one year bears to the whole period, — the appropriation Act of March 9, 1891 (Laws 1891, Chap. 6), appropriating (Sections 1 and 11) for fuel and lights for the Agricultural College §2,000 per year '‘for the ensuing two years,” and (Section 31) increasing each item therein, pro rata, to cover the period from March 8 to June 30, 1893 inclusive, authorized the agents of the state to procure fuel and light for the use of such college, at the expense of the state, to an amount not exceeding' §2000 during the period from March 8, 1891, to March 8, 1892, and not exceeding $2,620 during the period, from March 8, 1892, to and including June 30, 1893.</p> <p>2. Plaintiff, during one of the periods, specified in the appropriation act of March 9, 1891 (Laws 1891, Chap. 6, § 11), furnished fuel for the Agricultural College to a certain amount, on request of its-offleers. During such period, the enti re indebtedness incurred by such officers for fuel and lights aggregated an amount, including the sum due plaintiff, less than the amount appropriated for such purpose for such period. Held, that such indebtedness to plaintiff constituted a legal claim against the state, the validity of which was not impaired by the misuse of such appropriation in the payment of indebtedness contracted during another period.</p> <p>3. In an action against the state to recover for fuel furnished the Agricultural College on request of its officers, the burden was on plaintiff to show that the indebtedness so contracted was incurred at a time when the agents of the stato wore authorized to make such purchase, in view of the constitutional provisions (Article 11, $ 9) that no indebtedness shall be incurred except in pursuance of an appropriation for the specific purpose first made, and (Article 12, $ 3) that all unauthorized contracts shall be null and void.</p>

<p>Original action by the Winona Mill Company against the State of South Dakota to recover for coal. Judgment for plaintiff.</p>

Appoal from Lawrence county court. Hon. William A. Rinehart, Judge. Action by Mrs. Jeff McDermott against Matthew Carroll. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by the Massillon Engine & Thresher Co. against C. W. Hubbard, impleaded with another. From an order denying said Hubbard’s motion to vacate a judgment against him, on the ground that he had not been served with summons, he appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by tho county of Brown against George W. Jenldns and P. T. Burns, to recover the possession of certain promissory notes. There was a judgment for defendants, and plaintiff appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Attachment by Ambrose D. Chaffee against Runkel, Rowley & Co., a corporation organized and existing under the laws of South Dakota. Prom an order overruling a motion to discharge the attachment, defendant appeals. The facts are stated in the opinion,

<p>Appeal from circuit court, Meade county. Hon. A. J. Plowman, Judge.</p> <p>Attachment by Dexter Pillar against Runkel, Rowley & Co., a corporation organized and existing under the laws of South .Dakota. From an order overruling a motion to discharge the attachment, defendant appeals.</p>

Blon. Julian Bennett, Judge. Action in a justice court by Aultman, Miller & Co., a corporation, against Andrew Nelson and Niels. Jenson. From a judgment for plaintiff, defendant Jenson appealed to the circuit court; and from an order therein overruling a motion to dismiss the appeal, plaintiff appeals. The facts are stated in the opinion.

Hon. Loring E. Gappy, Judge. Action by William H. Male against Minnie M.'Brown. From an order overruling a demurrer to' defendant’s answer, plaintiff appeals. The facts are stated ip the opinion.

<p>1. Under Laws 1889, Chapt. 26, entitled “An Act to give publicity to chattel mortgage sales,” providing', by Section 5, that “all sales under this Act shall be * * * within 20 days after seizure of the property, unless the sale shall be postponed,” but, by section 10, providing that the Act shall not prevent foreclosure by action, failure to make sale within 20 days after the mortgagee takes possession of the property does not discharge the lien of the mortgage.</p> <p>2. Capacity of plaintiff mortgagee to bring in the courts of the state his action to recover of the mortgagor the mortgaged chattels cannot be questioned by interveners, they being in effect plaintiffs, as, in their complaints in intervention, they seek to recover of plaintiff for conversion of the mortgaged chattels.</p>

■ Hon. Loring E. Gaffy, Judge. Action by Martha A. Turner against Hand county to quiet title to certain real property. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.

E. G-. Smith, Judge. On rehearing. Action to cancel a special tax. Defendant had judgment and plaintiff appealed. In an opinion reported in 10 S. D. 516, 74 N. W. 447,- the judgment was reversed.

Hon. A. J Plowman, Judge. Action in claim and delivery by Thomas W. McDonald against George S. Fuller, sheriff of Butte county, and another. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action by Patrick B. McCarthy against Edward W. Speed, administrator of Wm. B. Franklin, deceased, and others, to determine conflicting claims to certain mining property. Judgment for defendants. Plaintiff appeals. The facts are stated in the opinion.

•Appeal from circuit court, Davison county. Hon. Frank B. Smith, Judge. Action by Robert H. MacBride against Abner E. Hitchcock and others. From an order overruling a demurrer to the complaint, defendants appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Pennington county. Hon. William Gardner, Judge.</p> <p>- Action by the G. S. Congdon Hardware Company, a corporation, against the Consolidated Apex Mining Company, a corporation. Prom an order denying defendant’s motion to set aside a default judgment, it appeals.</p> <p>The facts are stated in the opinion.</p> <p>The concealment of the service by the director, Farrar, from the managing officers of defendant corporation was sufficient cause for opening the judgment. Willsey v. .Horse Ranch Co., 7 S. D. 114; Stum v. School, 47 N. W. 462.</p> <p>The defendant should have been allowed to file its answer and defend the cause on the merits. Griswold Oil Co. -v. Lee, 1 S. D. 531; Searles v. Christensen, 5 S. D. 658; Vermont Co. v. Black, 38 Pac. 512.</p> <p>When a default judgment is obtained before any papers have been filed in the office of the clerk of court, both public policy and justice shall require the courts to declare it invalid. Becker v. Cuena, 25 Pac. 167; Young v. Rosenbaum, 39 Cal. 653; § 5335 Comp, Laws.</p> <p>A motion to vacate or set aside a judgment under the provisions of our statute is addressed to the sound discretion of the trial court on the particular facts of the case, and its action in the matter will not be disturbed unless there is a manifest abuse of such discretion. Evans v. Fall River Co., 4 S. D. 119; State v. Casey, 69 N. W. 585; Pettigrew v. City of Sioux Falls, 60 N. W. 27; Patzyk v. ’Mach, 74 N. W. 1027.</p>

Hon. E. Gr. Smith, Judge. Action by Clemena Parker and others against William M. Vinson and another. From a judgment for plaintiffs for the possession of land, and for defendants for the value of their improvements, plaintiffs appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Brookings county. Hon. Julian Bennett, Judge.</p> <p>Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. Judgment for plaintiff, and defendant Niels Jensen appealed to the circuit court. From an order therein overruling a motion to dismiss the appeal, plaintiff appeals.</p>

Brookings county. Hon. Julian Bennett, Judge. Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. From a judgment there was an appeal to the circuit court; and from an order therein denying plaintiffs motion to dismiss the appeal, it appeals.

• Action, by Lyman county against the state to recover cost of criminal prosecution. On exceptions by defendant to report of referee. Findings of referee adopted, except as to one item allowed. Intervening complaint of Hanson county dismissed, on sustaining defendant’s demurrer thereto.

Original action by James Morgan against the state to recover costs of criminal prosecutions arising in unorganized counties. Hearing on report of referee, and plaintiff’s motion for judgment thereon.

Hon. J. 0. Andrews, Judge. Action by G. A. Lindskog, sheriff of Brookings county, against N. A. Schouwéiler and another, co-partners as Schouweiler Bros., and Thomas Lavin. A judgment was rendered, from which defendants Schouweiler appeal. On motion to dismiss.

Hon. J. O. Andrews, Judge. Action by William H. Smith against W. H. ■ Hawley, as sheriff of Brookings county. From judgment for plaintiff, defendant appealed. Respondent moved to dismiss the appeal on the ground that neither the judgment nor order appealed from had been entered when the appeal was taken.

Hon. J. O. Andrews, Judge. Action by N. A. Schouweiler and. another, co-partners, against the Merchants’ Mutual Insurance Association. Judgment for plaintiffs, and defendant appeals. The facts are stated in the opinion. Appraisement was a condition precedent to plaintiff’s right to sue. Gassner v. Sun Fire Office (Minn.), 44 N. W. 252; Chippewa Lumber Co. v. Ins. Co. (Mich.), 44 N. W. 1055; Morely. v. Ins.,, Co. (Mich.), 48 N. W. 502; Hamilton v. Ins.

E. G. Smith, Judge. Suit by Samuel D. Luscombe against Melvin Grigsby and others. Judgment for plaintiff, and defendants Melvin Grigsby and Porter P. Peck, as receiver of F« T. Day, appeal. The facts are stated in the opinion.

Hon. Frank B. Smith, Judge. Action by Charles G. Herron against Lyman county. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion,

Hon. A. W. Campbell, Judge. Action by Cornelius Clark against Jared Darlington to determine adverse claims to realty. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by C. M. Neher against McCook county, to recover sheriff’s mileage fees. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. . ■ Action by the McCormick Harvesting Machine Company against John Halvorson. From a judgment of the circuit court reversing a judgment of a justice of the peace for defendant, he appeals. The facts are stated in the opinion.

<p>Defendant was convicted of rape on a female under the age of 16 years, and his application for a new'trial was denied; but inasmuch as the evidence showed that the female was more than 16 years old at the time when the offense was alleged to have been committed, the court on its own motion arrested the judgment, and ordered defendant to be held in custody for 10 days, during which a second information was filed against him, charging the same offense, with the exception that the date of the commission of the offense was earlier. Held, that, a piea of former jeopardy should be sustained, in view of Const. Art. 6, § 9, providing that “no person shall * * * be twice put in jeopardy for the same offense.”</p>

Application, original in this court, by H. Ray Myers for a writ of mandamus to compel A. W. Campbell, a judge of the circuit court, to settle and sign a bill of exceptions.

Hon. Frank B. Smith, Judge. Action by L. J. Martin and another against Hugh Smith, sheriff of Miner county, and others. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Motion to dismiss appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Beta Homme county, Hon. E. G. Smith, Judge.</p> <p>Action by the Bender Bros. Company against W. H. McDonald. Judgment- for defendant, and plaintiff appeals.</p>

<p>Appeal from circuit court, Hand county. Hon. Loring E. Gappy, Judge.</p> <p>Action by William H. Male against John D. Miller. ' From an order overruling a demurrer to the answer, plaintiff appeals.</p>

Hon. Frank B. Smith, Judge. Action by the Bank of Iowa and Dakota against John Oliver and M. M. Price. From an adverse judgment, defendant Price appealed, and he now makes application to amend his abstract.

Hon. J. W. Jones, Judge. Suit by Willard P. Carr against Jacob T. Gilbert, Jewett Bros & Jewett, and others, to foreclose a mortgage. From an order overruling a motion to vacate the decree of foreclosure, Jewett Bros. & Jewett appeals. The facts are stated in the opinion. A trial court has no jurisdiction to render judgment against a defendant in excess of the relief demanded in the complaint. Comp. Laws, Sec. 5097; Simonson vs. Blake, 20 How. Pr. 484; 6 Ency.

Hon. A. W. Campbell, Judge. Action by Leroy D. Miles against Benton township and others to enjoin the issuing of bonds to sink an artesian well. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. Chapter 80, Laws 1891 and Chapter 103, Laws 1895, amendatory thereof, authorizing civil townships to sink artesian wells for public purposes and to issue bonds therefor, are unconstitutional. Sec. 10, Art. 11, Const.

Hon. J. W. Jones, Judge. Action by Nellie Holt against the Metropolitan Trust Company of the City of New York, trustee, and others, to attack the validity of foreclosure proceedings. From an order overruling demurrer of defendant trust company, it appeals. The facts are stated in the opinion. The certificate of acknowledgment of the notary to the assignment of mortgage from the Fidelity Loan and Trust Company to the defendant and appellant was sufficient!

' Hon. William A. Wilkes, Judge. Action by F. H. Hollister against C. W. Hubbard, Thomas H. Brown, John W. Tuthill, Porter P. Peck, and C. C. Carpenter, to recover upon a bond. From a judgment for defendants, plaintiff appeals. The plaintiff was the real party in interest. The action should thereupon be prosecuted in his name although it is upon an official bond which runs to the county. Comp. Laws, § 4870.

Hon. J. O. Andrews, Judge. Action by M. Williams against the Chicago & Northwestern Railway Company to recover damages for the killing of stock. Verdict was given for defendant, and from an order granting a new trial defendant appeals.

Hon. E. C. Smith, Judge. Action to recover damages fpr killing a calf. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. The undisputed evidence fully rebuts the presumption of negligence created by the. statute, and a question of law arises, to be passed upon by the court.

<p>Appeal from circuit court, Hutchinson county. Hon. El G. Smith, Judge.</p> <p>Action to recover damages for killing stock. Plaintiff had judgment, and defendant appeals.</p> <p>The facts are stated in the- opinion.</p> <p>The evidence fully rebuts the presumption of negligence created by the statute, and there was no evidence whjksh would justify the court in submitting the question of negligence to the jury. Gay v. Railroad, 5 Dak. 514, 41 N. W. 757; Huber v. Railroad, 6 Dak. 392. 43 N. W. 819; Volkman v. Railroad, 5 Dak. 69, 37 N.'W. 731; Hebron v. Railroad, 4 S. D. 538, 57 N. W. 494; Harrison v. Railroad, 6 S. D. 100, 60 N. W. 405.</p> <p>The company had the right to presume there were no trespassing animals on its right of way. Lighthouse v. Railroad, 3 S. D. 518, 54 N. W. 320; Harrison v. Railroad, 6 S. D. 100, 60 N. W. 405.</p> <p>There being a material conflict in the testimony as to the negligence of defendant, the question was properly submitted to the jury. Sheldon v. Railroad, 6 S. D. 606, 62 N. W. 955; Lighthouse v. Railroad, '3 S. D. 518, 54 N. W. 320; Rennett v. Railroad, 8 S. D. 394, 66 N. W. 934; Hutchinson v. Railroad, 9 S. D. 5, 67 N. W. 853.</p>

Hon. A. W. Campbell, Judge. Action by Louis Auby against James G. Rathbun, sheriff, and another. From a judgment for plaintiff, the sheriff appeals. The facts are stated in the opinion. To make a valid levy, it is not necessary that the sheriff take manual possession.

<p>1. A motion by respondent to file a supplemental abstract, denying that an undertaking on appeal was served, four monlbs after tbe case was submitted on the merits, will be denied.</p> <p>2. Service of undertaking on appeal on the respondents is unnecessary, to confer jurisdiction on the appellate court, under Comp. Laws, §§ 5215, 5219, providing for service of' notice of appeal, and that an undertaking , must be executed by the appellant.</p>

Hon. A. W. Campbell, Judge. Action by Ed. Houser against J. H. Nolting. From a judgment of the circuit court dismissing defendant’s appeal from a justice of the peace, defendant appeals. The facts sufficiently appear in the opinion.

Hon. Loring E. Gaffy, Judge. Action for an injunction. From a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. ‘ The judgment can and should be enjoined. Pollock v. Gilbert, 16 Ga. 398, 60 Am. Dec. 732; Hilbard v. Eastman, 47 N. H. 507, 93 Am. Dec. 467. A justice of the peace has no power to issue a summons in a case where the plaintiff is a nonresident, until security for costs is furnished. § 6141, Comp. Laws.

<p>1. An objection to tbe introduction of any evidence, on the ground that the. complaint does not state a cause of action, need not specify wherein the complaint is insufficient.</p> <p>2. The grantee of mortgaged land conveyed it to C., for the former’s use and benefit, and afterwards' obtained from the mortgagee’s agent a certificate of satisfaction, executed by the mortgagee, which the agent had procured by fraud. After the mortgagee demanded of such grantee a return of the certificate, the latter delivered it to C., and permitted it to be recorded. Held, that an action in conversion lies. against the grantee for nominal damages because of the breach of duty in recording the certificate, though no substantial rights of the mortgagee were affected.</p> <p>3. The amount appearing to be due on a no.te is presumed to be its value, in the absence of contrary evidence.</p>

Hon. A. W. Campbell, Judge. Action for damages. From a judgment for plaintiffs-before a justice of the peace, defendant appealed to the circuit court, where its appeal was dismissed. Defendant appeals. The facts are stated in the opinion. The motion to dismiss the appeal came too late. McDonald v. Thompson, 16 Col. 113; Ricker v. Collins, 81 Tex. 662; 'Exparte Ostrander, 1 Den. (N..Y.) 679. The papers were not transmitted in time. § 6136, Comp.

Hon. Joseph W. Jones, Judge. Mandamus to compel the issuing of a sheriff’s deed. Judgment for defendant, and plaintiff appeals. The facts are stated in the opinion. The act of 1898 cannot be applied to this contract, because to do so would be to impair its obligation and violate the constitution of the United States. Greenwood v. Butler (Kan.), 23 L. R. A. 4(55; Bernitz v. Beverly, 163 U. S. 118; Louisiana v. New Orleans, 101 Jet. 203; United States v. Quincy, 71 Id. 535.

Hon. A. J. Plowman, Judge. Action by James C. Carson, trustee, against George S. Fuller, sheriff. From a judgment for plaintiff, defendant appeals. The facts are stated hr the opinion.

<p>1. Under Laws 1895, Chap. 131, providing that notice of foreclosure sale may be published in any newspaper of the county having a bona fide circulation of 200 weekly copies, etc., a notice of sale, published in a paper complying with the statutory requirements, was not invalid merely because it was not published in a paper printed at the county seat, and nearer the mortgaged premises.</p> <p>2. Under Comp. Laws, § 5154, providing that property sold at foreclosure sale may be redeemed within one year from the date of sale, mortgagor is not entitled to one year from the date of the certificate of sale-and delivery of the duplicate to the purchaser.</p> <p>3. If a foreclosure sale is fairly and regularly conducted, it will not be set aside for mere inadequacy of price.</p>

' Hon. E. G. Smith, Judge. Action by Alice Hewett against Isaac P. Usher and others to recover damages for conversion. Judgment for plaintiff, and defendant, the Sioux Falls Candy Company, appeals. The facts are stated in the opinion. There was no delivery of the property to plaintiff, nor was there any change in the possession; the pretended sale was therefore fraudulent and void as against creditors. § 4657, Comp. Laws; Howard V. Dwight, 8 S. D. 398; 66 N. W. 935.

<p>Appeal from circuit court, Sanborn county. Hon. Frank B. Smith, Judge.</p> <p>Action by William McFarland against William Schuler, sheriff of Sanborn county. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals, and makes application to amend his abstract.</p>

Loring E. Gaffy, Judge. Actidn by the National Bank of Commerce, of Pierre, against Alfi-ed S. Guthrie and another. Prom a judgment for plaintiff and an order denying a new trial, -defendant Guthrie appeals. The facts are stated in the opinion. The giving of the new note and mortgage for the old note, unsecured, constituted an accord and satisfaction; there was a novation; and it was error to exclude the testimony offered to establish these facts.

Hon. W. A. Wilkes, Judge. Action by the Western Twine Company against F. R. Wright and others. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion.

Hon. Loi> ing E. Gaffy, Judge. Action by Corwin D. Mead, assignee of the First Bank of Ft. Pierre against Frederick W. Pettigrew, on a promissory note. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The First Bank could not be considered a bona fide purchaser, it being the same bank that took the note, but under a different organization and name.

Hon. Joseph W. Jones, Judge. Action by H. G. Fletcher against W. D. Church and others. From an order granting defendant Church a change of venue, plaintiff appeals. The facts are stated in the opinion.

Hon. W. A. Wilkes, Judge. Action by the Plano Manufacturing Company against Swan Person. From a judgment for defendant plaintiff appeals. Motion of appellant in supreme court to correct bill of exceptions. The facts are stated in the opinion.

Hon. Loring E. Gaffy, Judge. William D. Yokum was convicted of murder, and lie brings error. The facts are stated in the opinion. It was error for the trial court to exclude evidence of the custom and habit of the deceased of carrying firearms. Riley v. Com., 22 S. W. 222: Garver v. State, 12 So. 638; People v. Harris. 54 N. W. 648; Wiley v. State, 13 So. 424; Garver y. State, 9 So. 835-, Jackson v. State, 12 S. YY 501.

Hon. William Gardner, Judge. > Action by Erwin G. Dudley against the Dakota Hot Springs Company and others for an accounting and a dissolution of the corporation and appointment of a receiver. William P. Phillips intervenes. There was a judgment for plaintiff, and certain defendants appeal. The facts are stated in the opinion. The trial court had no power to appoint a receiver and thereby dissolve the corporation.

<p>Appeal from circuit court, Fall River county. Hon. William Gardner, Judge.</p> <p>Action by Erwin G. Dudley and another against the Dakota Hot Springs Company and others. From an order appointing a receiver, defendants appealed.</p>

Hod. J. W. Jones, Judge. Action in forcible entry and detainer by the Northwestern Loan & Banking Company against Erik Jonasen and others in justice court. Title to land being questioned, the action was certified to the circuit court. There was a judgment in favor of defendants, and plaintiff appeals. The facts are stated in the opinion. A mortgage to secure the purchase price of a homestead executed by the fee owner need not be signed by the husband or wife of such owner.

<p>Laws 1879, Chapter 14, § 35, makes school districts bodies corporate with the usual power's of corporations for public purposes. Laws 1881, Chap. 24, §2, provides that the question submitted to the district shall be “the amount of bonds that shall be issued, and the time in which they shall be made payable.” Section 3 prescribes the character of the bonds, and limits the issue to $1,500, except in municipalities of more than 1,000 inhabitants. Held, that district officers were authorized to cancel unsold bonds regularly issued, and substitute therefor bonds specifying a different place of payment, the reissued bonds being- identical in amount with those canceled.</p>

Hon. A. W. Campbell, Judge. Philomen Dunning and Charles L’ongstaff were convicted-of a criminal offense, and bring error. A motion to dismiss was made by defendant in error, and a motion for leave to serve a citation, abstract’ and brief, was made by plaintiff in error.

Hon. J. W. Jones, Judge. Action by the Co-operative Savings & Loan Association of Sioux Falls, S. D., against T. O. Fawick and another, for foreclosure of a mortgage. Defendants appeal from an order sustaining a demurrer to the answer. The facts are stated in the opinion.

<p>Under Comp. Laws, § 5212, providing that, “aft-or final judgment has been rendered in an action,” the court may enter up judgment against the surety for costs adjudged against plaintiff, such judgment cannot be entered against the sureties on a cost judgment against plaintiff, entered on reversal of the case by the supreme court, and pending a retrial.</p>

Hon. Joseph W. Jones, Judge. Action by Christian F. H. Witte against Albert C. Koeppen, as administrator of the estate of C. F. H. Koeppen, deceased, to recover a money judgment. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The facts are stated in the opinion. The testimony of the witness Christian Koeppen was incompetent.

<p>Appeal from Minnehaha county court. Hon. W. A. Wilkes, Judge.</p> <p>Action in justice’s court by Louis Sorenson against Den Donahoe. There was a judgment for plaintiff, and an appeal was .dismissed by the county court, which also affirmed, the judgment, and defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. Joseph W. Moore, Judge. Action to cancel a bond for a deed, by John C. Taylor against Peter Neys’ impleaded with another. Prom a judgment for Peter Neys, plaintiff appeals. The i’ecord of a judgment cannot be impugned. When the record made up by a court of general jurisdiction shows conclusively that a certain question has been judicially determined between the same parties, evidence aliunde is inadmissible to contradict it.

Hon. Julian Bennett, Judge. Action by Mary J. Ashton against Perry J. Ashton, to recover possession of a tract of land. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. A. J. Plowman, Judge. Action by the Black Hills Telegraph & Telephone Company against T. 0. Mitchell and T.. W. Thompson, partners as Mitchell & Thompson, From a judgment for plaintiff, defendants appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by the F. Meyer Boot & Shoe Company against the C. Shenkberg Company and N. Smith, to have declared void and set aside certain conveyances of personal property and for other relief. Judgment for defendants and plaintiff appeals. The facts are stated in the opinion. The,mortgage to defendants was a fraud upon the creditors of Curtis and was void. Bookstoff v. Snyder, 74 N. W. 863; G-reeley v. Winsor, 1 S. D. 117.

Hon. Joseph B. Moore, Judge. Action by Herbert E. Dewey against Wm. Feiler, to recover attorney’s fees. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Hughes county. Hon. Loring E. Gappy, Judge.</p>

Hon. A. W. Campbell, Judge. Action by G. W. Froelich against Charles Aylward. From an order denying a motion to set aside a levy of execution, defendant appeals. The facts are stated in the opinion. The paper filed in the office of the clerk of the circuit court was wholly insufficient as a transcript of any j udgmeut. §§ 6123, 6124, 6110, Comp.

Hon. Joseph W. Jones, Judge. Action by Scott and G-. L. Riclaison, co-partners as Richison Bros.,-against John H. Mead, to recover' for services in drilling and sinking a well. Judgment for plaintiffs, and defendant appeals. The facts are stated in the- opinion. Under the contract the parties.were to agree upon the sufficiency of the water obtained and the defendant was to be satisfied with the supply furnished.

Hon. Joseph W. Jones, Judge. Action by Martin E. Rudolph against John W. Hewitt to recover upon a promissory note. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.