Volume 11 — Utah Reports

Hon. James A. Miner, Judge. Mandamus on relation of Daniel Hamer, county collector, to compel Weber county and Joseph P. Ledwidge, county clerk of said county, to credit relator with $15,-853.57. The court found that relator was entitled to a ■credit of only $8,804.63 and made the writ peremptory, from which decree relator appeals.

Hon. James A.’ Miner, Judge. Mandamus on relation of Weber county to compel Daniel Hamer, county collector, to pay into the county treasury $14,733.34. The court decreed that defendant pay over the sum of $5,928.71 with interest, and made the writ peremptory, from which defendant appeals.

Hon. James A. Miner, Judge. Action by Short & Eandall against Pierce & Christ-offersen to cancel and rescind certain contracts for the purchase of real estate and for other relief.

Hon. George W. Bartch, Judge. Eoy Wright, convicted of grand larceny for stealing a, bicycle, appeals from the judgment rendered and from an. order denying a new trial. Appellant contends that the court erred in charging the jury that “the exact time when the' offense was committed is not material/’ for the reason that the indictment and the proof correspond as to the time when the bicycle was stolen, to wit, on the 3rd day of April, 1894.

District. Hon. George W. Bartch, Judge. Action by William A. Cooper against the Denver & Eio •Grande Railroad Company to recover a balance due for -salary. There was a verdict for plaintiff, and from an ■order denying a new trial, defendant appeals.

Hon. Charles S. Zane, Judge. Action by Hector W. Haight against Charles E. Pearson to hare an interest bought by defendant in the estate-of which plaintiff was executor declared to be held in trust for plaintiff. From a judgment for plaintiff, defendant appeals. A parol contract under § 3917, 2 Comp. Laws, is void.. Bung v. Parker, 52 N. Y. 496; Dunphy v. Ryan, 116-H. S. 495; Welch v. Wheplay, 62 Mich. 15; Reub v. Smith,. 61 Mich. 549; Osborn v. Bndicott, 6 Cal. 154.

Hon. George IV. Bartch, Judge. Action by Edward P. Sooville against Salt Lake City te-reco ver damages for personal injuries to his minor child. From a judgment for plaintiff and from an order denying; a new trial, defendant appeals. “The mere slipperiness of a walk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby.” 2 Dill. Mun.

Hou. Charles S. Zane, Judge. Action by McCormick Harvesting Machine Company against John A. Marchant and another. From a judgment-in a justice court for plaintiff for $444.27, defendants-appeal to the district court. TJpon a trial de novo in the district court, there was a judgment for plaintiff on the-verdict of a jury for $299 and costs, and from an order denying a new trial, defendants appeal.

Original application on relation of S. F. Fenton, doing 'business under the name of the Inter-Mountain Electric ■Company against Jacob B. Blair, A. S. Geddes, Charles H. Roberts and M. Christophersen, as members of the •county court of Salt Lake county for a writ of mandamus.

Hon. Samuel A. Merritt, Judge. Action by William J. Chalmers against Lamartine C. Trent and Delome Trent, his wife, for the partition of certain real estate. There was an order sustaining a demurrer to the cross complaint of Lamartine C. Trent, and from the final judgment dismissing and striking the same from the files, he appeals. New parties can not be brought in by cross complaint. Harrison v. MoGornick, 69 Cal. 613.

Hon. H. W. Smith, Judge. George Hughes, convicted of robbery, appeals from the judgmentrendered, and from an order denying a new trial.

Hon. George W. Bartch, Judge. Action by Alexander Rogers against John W. Donnellan for a perpetual injunction to prevent the defendant from selling plaintiff’s one-third interest in certain property and for -other equitable relief. From a judgment for plaintiff and irom an order overruling defendant’s motion for a new trial, be appeals. Since the passage of the statute of frauds, most of the-authorities hold that an oral partition of land can not be-made. 2 Comp.

Original application for a writ of habeas corpus upon the relation of W. W. Wilson against the United States Marshal of Utah Territory. Comp. Laws 1876, § 2221, p. 650, provided for cumulative sentences. In 1878 an act was passed entitled, “An act regulating the mode of procedure in criminal cases,” the first section of which provides “that the mode of procedure in criminal cases in the courts of this territory shall be as prescribed in this act.” Session Laws 1878, p. 60.

Third Judicial District. Hon. George W. Bartch, Judge. Mandamus proceedings upon the' relation of J. D. Page against the Utah Commission, consisting of Jerrold R. Letcher, Erasmus W. Tatlock, Albert G. Norrell, Hoyt Sherman, Jr., and Geo. W. Thatcher. From a judgment granting a peremptory writ and from an order denying a new trial, defendants appeal. The opinion states the facts except that the last clause of § 256, 1 Comp.

Hon. George W. Bartch, Judge. Application of J. D. Page for a writ of prohibition against J. R. Letcher, et ah, constituting the Utah Commission. From a judgment awarding a peremptory writ and from an order denying a new trial, defendants appeal.

Hon. Samuel A. Merritt, Judge. Action by Martha Ann Coombs against the Salt Lake- & Fort Douglas Railway Company, Utah Central Railway Company and James McGregor and Clarence Carey, receivers, for an injunction nisi to become absolute within a definite length of time to be determined by the court-unless the damages assessed by the court were paid. The court awarded plaintiff damages but denied the injunctive relief.

Hon. J. W. Blackburn, Judge. Action by W. L. Burrows, and others, against Oliver G-. Kimball, and others, for damages and for an injunction to prevent repeated trespasses.

Hon. Charles S. Zane, Judge. ~ Action by C. E. Mackey against Frank Enzensperger. There was a verdict for the defendant, and from a judgment dismissing the complaint, plaintiff appeals. [The court has followed the ruling in Hess v. White, in Publishing Go. v. Brewing Co., 10 Utah, 147] Tuclcer y. Salt Lake City, Id. 173] Wolf Co. v. Brewing Co., Id. 179] Riley v. Rapid Transit Co., Id. 428.

Hon. James A. Miner, Judge. Action by William Bailey against Sidney Stevens and others to enjoin an execution on a judgment at law and. for a new trial. From an order and judgment sustaining the demurrer and dismissing the complaint plaintiff, appeals. The district court possesses chancery as well as common, law jurisdiction. Organic Act, 1 Comp. Laws 1888, p. 44; 1 Utah, 340.

Hon. Samuel A. Merritt, Judge. Action by Remington, Johnson & Company, against John L. Weber, sheriff of Summit county, and others. The cause was referred to R. H. Cabell, Esq., referee, who found in favor of the plaintiffs on the second, and in favor of the defendants on the first cause of action stated tn the complaint. From an order overruling plaintiffs* motion for a new trial on the first cause of action and from the judgment entered thereon, they appeal.

Hon. C. S. Zane, Judge. Action by Warren Barnhart against Cassle Foley accompanied by attachment. From an order denying a motion to dissolve the attachment, defendant appeals. A writ of attachment is improvidently or improperly issued when it is issued in an improper case in fact, though the allegations of the affidavit are on their face-sufficient. Drake on Att., § 397; Waples on Att., pp. 425, 426. All the averments named in §. 3309, Vol. II, Comp.

Hon. Samuel A. Merritt, Judge. Action by E. L. Butterfield against the Mountain Ice & Cold Storage Company, a corporation, B. K. Bloch and •John Heil, Jr. From an order striking out the separate .answer of B. K. Bloch as sham, and from a judgment entered on the pleadings, defendant Bloch appeals.

Hon. Samuel A. Merritt, Judge. Action by Alfred G. Brimm, as road supervisor, against Thomas W. Jones. This action was begun in the justice ■court. Echo precinct; Summit county, Utah. There was -u demurrer to the complaint, which was overruled, and judgment was afterwards duly entered for the sum of $10 .and $9.50 costs. Thereupon defendant appealed to the •district court, where the demurrer was sustained and the ■complaint dismissed.

Hon. Samuel A. Merritt, Judge. Action by Waldemar Yan Cott against O. P. Pratt. There was judgment for plaintiff. Upon the. return of process of garnishment served upon Salt Lake City showing funds of defendant in its hands as salary, plaintiff moved for a judgment thereon, and from a judgment de-mying this motion, he appeals.

Hon. Samuel A. Merritt, Judge. Action by James Thomson against Franklin C. Avery. From a judgment for plaintiff, defendant appeals.

Hon. George W. Barfcch, Judge. Charles Thiede was convicted of murder in the first degree. From the judgment entered and from an order overruling the motion for a new trial and in arrest of' judgment, he appeals. The opinion states the facts except the record shows the following: At 12:30 A. m. defendant was asleep in his saloon and was awakened with difficulty by Trusk and Johnson, and at->;hat time he had no blood stains on his white shirt or vest and none on his hands.

Original application for a writ of habeas corpus by -Clayton Gannett, who was convicted of grand larceny in the First Judicial District for stealing live stock, and sentenced to imprisonment in the penitentiary. It is conceded by the people that if that part of the ■ old law of 1876 (2 Comp. Laws 1888, § '4643) wherein the stealing of horses, cattle, etc., is made grand larceny, has been repealed the prisoner should be discharged. It was repealed by § 8, p. 21, Laws of 1886.

Original application for a writ of hateas corpus by Alexander Ogilvie who was convicted of grand larceny in the First Judicial District for stealing live stock, and sentenced to the penitentiary.

Hon. H. W. Smith, Judge. Richard A. Hasbrouck upon conviction before Harmel Pratt, IT. S. Commissioner, of practicing medicine without a license, appealed to the district court, and from a judgment of conviction in the district court upon a trial de-novo, appeals. Appellant does not question the right of the legislature' to pass such laws as will protect the physicians and the-subjects of the territory from the quack and charlatan.

<p>Appeal from the District Court of the Third Judicial-District. Hon. Charles S. Zane, Judge.</p> <p>Action by Lewis A. Scott Elliot against George C. "Whitmore and another. From a judgment for plaintiff, ■defendants appeal.</p>

<p>Appeal from the District Court of the Third Judicial District. Hon. Charles S. Zane, Judge.</p> <p>Action by Lewis A. Scott Elliot against George C. Whit-more and another. From an order confirming the report ■of W. P. Hardesty, Commissioner, defendants appeal.</p>

Hon. Samuel A. Merritt, Judge. Action by F. E. Gregg, doing business as F. E. Gregg & Co., against Hyrum Groesbeck, Nicholas Groesbeck, Henry M. Eyan, Alexander Wood, and P. H. Easehe, defendants, of whom Henry M. Eyan is appellant. The separate answer of Henry M. Eyan was stricken out as sham and frivolous and judgment entered on the pleadings, from which he; appeals.

Hon. George W. Bartch, Judge. Action by Robert Warnoek against Reuben DeWitt to-recover the possession of a mining claim. From a judgment for defendant, plaintiff appeals. Durkee, the original locator, failed to do his assessment-work in the year 1886, but early on the morning of January 1, 1887, he relocated the claim under another name. Plaintiff claims under a location made January 17, 1887. TJnder § 2324, Eev. Stat.

Hon. H. W. Smith, Judge. Action by George T. Peay against Salt Lake City, the Utah and Salt Lake Canal Company, the South Jordan Canal Company, the North Jordan Canal Company, and the Draper or Bast Jordan Canal Company for damages, and for injunctive relief. From a judgment for plaintiff,, defendant appeals.

Hon. S. A. Merritt, Judge. Action by C. 0. Whittemore against Thomas H. Cope ^nd others, for the recovery of a share of the estate of Thomas H. Cope, deceased. From a decree based on the referee’s report in harmony with the cross-complaint ■of defendants, plaintiff and defendant, George H. Cope, .appeal. Janet Cope, the legal wife of Thomas Cope, lived upon ■and occupied the homestead and had a life estate therein.

Hon. Samuel A. Merritt, Judge. Action by Meyer Homberger and Morris Koenigsberger, -copartners as M. Homberger & Co., against Daniel Alexander and Julia Alexander, copartners as Daniel Alexander ■& Co. From a verdict for plaintiff, Julia Alexander appeals. The statute authorizes the taking of depositions out of ■the state upon commission. It permits the parties to .select the commissioner, but delegates no other authority to them.

Hon. Samuel A. Merritt, Judge. In the matter of the application of William Gilbert for a writ of certiorari to review the action of the board of police and fire commissioners of Salt Lake City in discharging relator from the fire department. From the judgment of the district court for relator, the board appeals. “A copy of the judgment signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll.'’'’ Comp. Laws, 1888, yol. 2, § 3128.

Hon. Samuel A. Merritt, Judge. In the matter of the application of C. J. Clark for a writ of review to review the action of the board of police and fire commissioners of Salt Lake City in discharging relator. From a judgment of the district court for relator, the board appeals.

Hon. H. W. Smith, Judge. Action by Ricy H. Jones against the New York Life Insurance Company. From an order permitting B. H. Jones and another to intervene and refusing to strike out defendant’s answer, plaintiff appeals. The answer of the insurance company was “good in form” but “false in fact,” and not pleaded in good faith, and should have been stricken out. 2 Comp. Laws 1888, § 3239; Gostorfs v. Taafe, 18 Cal. 386; Goldstein v. Krause, 13 Pac. Rep. 232.

Hon. S. A-. Merritt, Judge. Action by tbe Northwestern Wheel & Foundry Company for money due on contract.

Hon. James A. Miner, Judge. Hyrum Farrell was convicted of grand larceny and appeals. Defendant had been tried and acquitted of stealing cattle from one Clark, yet on the pretense of identification of the hides, Clark was allowed to go into all the evidence respecting the cattle the same, and as fully, as though defendant was on trial for the larceny of these identical cattle. This was error. Wharton's Grim.

Hon. James A. Miner, Jv,dge. In the matter of the estate of H. C. Wells, deceased, John Kelly and others applied for removal of David 1A Wells, as administrator. His appeal to the District Court from the order of the probate court removing him, was. dismissed and he again appeals. The opinion states the facts except the following: 2 Comp.

<p>Attachment. — Notice of Motion to Discharge. — Sufficiency.—2' Comp. Laws 1888, Sec. 3326, provides that the defendant may apply on motion to the court for a discharge of the writ of attachment on the ground that the same was improperly or irregularly issued. Held, that the notice of the motion to-discharge the attachment should specify particularly the grounds of the motion, and wherein it would be urged that, the writ was improperly issued.</p>

<p>1. Chiminal Law. — Motion to Dismiss Appeal. — Bill of Exceptions. — Judgment Boll. — Where an appeal is regular, a motion to dismiss on the ground that no exceptions were saved to any of the rulings of the court below in a bill of exceptions will be denied, since the appeal must stand as an appeal upon the judgment roll.</p> <p>3. Id. — Bill of Exceptions. — Beview on Appeal. — Orders in admission and rejection of testimony and in overruling motion for a new trial based on affidavits of newly-discovered evidence can be reviewed only on a bill of exceptions duly settled and allowed.</p>

<p>Criminal Law. — Eeview on Appeal. — Bill . of Exceptions.— Where the matters assigned as errors are decisions made by the trial court in matters of law, there is nothing for the-appellate court to review where the exceptions made to the rulings of the lower court are not properly saved by a bill of exceptions or otherwise.</p>

Hon. George W. Bartch, Judge. John ~W. Smith was indicted for taking mail from the postoffice. From a judgment sustaining a demurrer to the indictment, United States appeals. The offense is charged in the indictment in the exact language of the statute, and it sets out all the particulars ■of the offense and certainly does state an offense under the statute.

Hon. George W. Bartch, Judge. Action by M. C. Sullivan and others against the Northern Spy Mining Company. From a judgment for defendant, plaintiffs appeal. It was clearly error to |tdmit in evidence the deed from Henry Barney to the Northern Spy Mining Company, dated July 12, 1890, for there was no testimony tending-to show that Barney had any claim to any land embraced in the deed.

<p>On rehearing. — Modified. See former opinion, 10 Utah,. . 210, 37 P. E. 334.</p>

Hon. H. W. Smith, Judge. Action by Lord Claude Hamilton and another against-John Bastían and others to recover possession of a mine. Plaintiff Hamilton having died, the action was con“tinued in the name of his coplaintiff, John Elliott. The American Eagle Mining Company having succeeded to the interest of the original defendants, was made defendant and judgment by default was entered in its favor.

Hon. James A. Miner, Judge. Action by Edith B. Richey to recover money paid by mutual mistake. From a judgment for plaintiff, defendant appeals. To the facts stated in the opinion, the following may be added: -Stowell sold a tract of land to Swan and took back a note and mortgage in part payment, which was-recorded on the 12th day of September, 1888, and assigned to Clark on the 29th day of October, 1889.

Hon. James A. Miner, Judge. Action by Louis B. Adams and Watson N. Shilling: against Edward A. Reed, H. H. Henderson and others for the reformation and… Held: will entitle the vendee to a rescission of the contract.” And the same author says at page 945, “ In some instances it has been held that a defect or incumbrance not known to the vendee, when he accepts the •deed, is a defense to a bond for purchase money, although there be a general warranty.” Peck v. Jones, 70 Pa.