Volume 11 — Wyoming Reports

Mandamus. Original proceeding. This action was brought in the Supreme Court under its original jurisdiction in the name of the State on the relation of John W. Sammon against Fenimore Chatterton, as Secretary of State, for a writ of mandamus to compel the respondent to file in his office certain certificates purporting to nominate the relator as an independent candidate for the office of Judge of the Third Judicial District, to be voted for at the general election to be held…

Joseph L. Stotts, Judge. Action brought by Frank Morrow against the Bank of Commerce, a corporation, and E. E. Lonabaugh to recover a sum claimed to be due for services in gathering certain cattle… Held: or claimed to be held, by reason of the two executions that Morrow had taken with him.. It -might be considered that there is a point in the fact that Morrow was not immediately notified to return the cattle as soon as he arrived at Sheridan with them.

Frror to the District Court, Sheridan County, Hon-. RichaRD H. Scott, Judge of the First Judicial District, presiding. This action was instituted in the District Court sitting in and for the County of Sheridan by the Citizens’ State Bank of Dubuque, Iowa, for the foreclosure of three mortgages upon certain real estate in Sheridan County. The mortgages had been executed by George Tschirgi and his wife, Marie T. Tschirgi.

Joseph D. Stotts, Judge. George A. Roberts was charged by information filed in the District Court in and for Sheridan County, in two counts, with the larceny of certain neat cattle. The prosecution elected to prosecute upon the first count. The State relied upon possession by the defendant of the animals alleged to have been stolen, and proof that defendant had obliterated the brand of the owners and placed his own or his wife's brand upon the animals.

Richard H. Scott, Judge of First Judicial District, presiding. George W. Downing was indicted and tried for murder in the first degree. Held: in requiring murder in the first degree to be deliberate, do not change the common law in that respect with regard to murder,” etc. (1 Wharton Crim.

Reserved questions from the District Court, Big Horn County, Hon. Joseph L. Stotts, Judge. Action against the Board of the County Commissioners of the County of Big Horn by William E. Taylor, clerk of the commissioners appointed to organize said county, to recover compensation for his services as such clerk, and certain expenditures made by him in procuring supplies for the conduct of his office. The facts are stated in the opinion.

David H. Craig, Judge. Action by the Grand Rapids Furniture Company against the Grand Hotel and Opera House Company, A. M. Gilder-sleeve, Augustine Kendall and Walter H. Revell, to recover certain personal property. The plaintiff claimed the property as vendor in a conditional sale to one H. H. Edgar.

David H. Craig, Judge. John S. Houtz instituted this action to recover from the Board of the County Commissioners of the County of Uinta the sum of $1,689, which amount it was alleged had been exacted by way of fines and costs from Hyrum Severson, Andrew Hudson and E. P. Houtz, assignors of plaintiff, under a void judgment of one N. B. Anderson, a justice of the peace of said county, and by said justice paid into the treasury of the county.

Richard H. Scott, Judge of the First Judicial District, presiding.

Joseph E. Stotts, Judge. Action by Ann D. Adams against John R. Smith and Agnes D. Smith, his wife, for the possession of certain lands, including a tract claimed b)' the defendants as a homestead. Plaintiff derived title through a foreclosure sale under a mortgage executed by the defendants. John R. Smith suffered default. The judgment awarded the homestead to the defendant, Agnes D. Smith, and the other premises to the plaintiff.

Reserved questions from District Court, Fremont County, Hon. Charles W. Bramel, Judge. Action by Worden P. Noble and Albert D.Dane, co-partners doing business under the firm name of Noble & Dane, to enjoin the County Treasurer from selling certain personal property which had been seized and advertised for sale by said treasurer as collector of taxes for alleged unpaid and delinquent taxes.

David H. Craig, Judge of the Third Judicial District, presiding. The receiver of the First National Bank of Deming, New Mexico, brought an action against Henry Holgate, Roan-nah M. Holgate and George W. Downer, in the District ‘Court of Sheridan County, to enforce an attachment lien .against certain real estate, claimed to belong to Henry Hol-,gate, in order to satisfy a judgment obtained by the said •receiver against the said Henry Holgate.

Charles W. Bramel, Judge. Philip A. Steinhoff instituted the action to vacate a judgment previously rendered in an action brought ■ against him by the Earamie National Bank of Earamie City. From a judgment in favor of the plaintiff the defendant prosecuted error. The material facts are stated in the opinion.

Richard H. Scott, Judge. Action to enjoin the threatened construction of a ditch across the lands of plaintiff. The material facts are stated in the opinion. The point at issue in the entire case is whether the plaintiff in error was prior in point of time, and, therefore, in right, with the Whalon Ditch, or whether the defendant in error was prior in point of time, and, therefore, in right, with the Whalen Falls Canal and Powef Company Ditch. .

David H. Craig, Judge. Caroline Atchison, claiming to be an heir at law of one Marinda Wilson, deceased, and as such to be the owner of a one-fourth interest in a certain tract of land inventoried in the estate of one John B. Wilson, deceased, filed exceptions to an order of court directing a sale of the premises by the administrator of the John B. Wilson estate. The sale was made and confirmed, and said protestant prosecuted error.

David H. Craig, Judge. In an action brought by Mrs. Thomas Lafferty against J. Sistalla, judgment was rendered for plaintiff, and the Union Pacific Coal Company was summoned as garnishee. From an order discharging the garnishee the plaintiff prosecuted error. The material facts are stated in the opinion.

Richard H. Scott, Judge of First Judicial District, presiding. Action by Frank A. Mau against John W. Stoner for damages and injunction on account of an alleged actual and threatened wrongful diversion of water from plaintiff’s ditch. Judgment went for plaintiff, and defendant, alleging error, sought a reversal. The material facts are stated in the opinion. The jury failed and refused to follow the instructions of the court.

Original proceeding for writ of prohibition. The facts áre stated in the opinion. First, we desire to look at the terms of the constitution which give to the court authority for issuing the writ of prohibition. Referring to Section 3 of Article 5 of the Constitution, we find the following language: “Sec. 3. The Supreme Court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus.

David H. Craig, Judge. The facts are stated-in the opinion. • There is no evidence to* support the decision of the trial court, and the decision is clearly contrary to law. If it is clear that the verdict is contrary to law and there is no evidence to sustain it, it is the duty of the court to set it aside.

Erkor to the District Court, Uinta County, HoN. David H. Craig, Judge. David Rees, against whom a judgment had been rendered by a justice of the peace, commenced this action in the District Court, asking the aid of the court by injunction to restrain John Ward, the sheriff of the county, from levying an execution issued upon such judgment.

Richard H. Scott, Judge of First Judicial District, presiding. The plaintiff in error, M. W. Foley, was informed against for murder in the first degree in the County of Uinta. Change of venue was taken to Carbon County, and after the case was removed to Carbon County a change of judg'e was applied for and granted. Hon. Richard H. Scott of the First Judicial District was called in to try the case.

David H. Craig, Judge. Action by Lewis A. Marks against the Board of County Commissioners for the County of Uinta. The material facts are stated in the opinion. It is the contention of the plaintiff in error that Section 4172 has no application whatever to the case at bar, for the reason that the cause of action stated in the petition is not one to recover back an illegal tax or assessment. The petition does not complain of the levy of any illegal tax or assessment.

Reserved questions from the District Court, Sheridan County, Hon. Joseph L. Stotts, Judge. The case is stated in the opinion. The proposition that prior appropriation gives the better right is no longer, a controverted question. (Broder v. Water Co., 101 U. S., 274.) Such rights are based upon the Congressional enactments, and are dependent upon them.