Volume 12 — South Dakota Reports

Hon. A. J. Plowman, Judge. Action by Martin Sands against Alexander Cruickshank and another. Plaintiff appeals from an order granting a new trial. Heard on motion to dismiss appeal.

Hon. William Gardner, Judge. This was an action to determine adverse mining claims. Judgment was entered for defendants and plaintiff appealed. On the original hearing the judgment was reversed and a new trial ordered.

Hon. Joseph. B. Moore, Judge. Election contest by Peter F. McMahon against Horace Crockett. From a judgment in favor of contestant, respondent appeals. There was a full assignment of errors in the notice of motion for a new trial, which was incorporated into the bill of exceptions, and this was a sufficient compliance with the statute. Mt. Terry Min. Co. v. White, 10 S. D. 620; Reagan v. McKibben, 11 S. D. 270.

Hon. Joseph W. Jones, Judge. Action by Ames R. Jamieson, as one of the electors of Lincoln county, to contest the right of George H. Wiggin to the office of county judge. From a judgment in favor of defendant, Plaintiff appeals. Under the provision, § 25, Art. 5, Const., to be eligible to the office of county judge, one must be either admitted to the bar, or entitled to' be admitted, as learned in the law. Bac. Abr., Offices and Officers, 1; Throop, Pub.

<p>Where in an action before a justice on a joint obligation, proper service is made on defendant residing in the countv, jurisdiction of the person of defendant residing out of the county is properly obtained by a personal service on him ont of the county, under Comp. Laws, § 6055, providing that summons cannot be served out of the county of of the justice, except where the action is on a joint contract or obligation, and the summons has been served on the defendant resident of the county.</p>

<p>Under Comp. Laws, § 4900, which provides that a summons may be served by publication when “the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state” an affidivit,in an attachment suit, of plaintiff’s attorney, which states “that he placed a summons in the hands of the sheriff for service; that the latter has made his return on the summons, showing that, after due and diligent seach and inquiry, he is unable to find the defendant, and has returned the same unserved” — is in sufficient to support an order for publication of the summons, as it does not show what efforts the sheriff made to find defendant, but merely expresses his opinion of his acts.</p>

Hon. Joseph B. Moore, Judge. Action by John Zerfing against Michael Seelig and another. From a judgment for plaintiff entered on a verdict directed for plaintiff, defendants appeal. In an action upon a covenant of seizen, where the defendant alleges that at jbe time of the conveyance he was well seized, the burden of proof is on the defendant, and plaintiff is not bound to prove that defendant has not kept his covenant.

Hon. Joseph B. Moore, Judge. Attachment proceedings by Thomas Bradley against the Interstate Land & Canal Company and others. George A. Fletcher, a junior attaching creditor, moved to discharge plaintiff’s attachment on the ground that the same was defective. His motion was denied, and he appealed.

<p>Appeal from circuit court, Browu county. Hon. A. W. Campbell, Judge.</p> <p>Action by the Northwestern Mutual Hail Insuarnce Company of Elkton, S. D., against John Fleming. Judgment for defendant, and plaintiff appeals.</p>

Hon. Levi McGee, Judge. Action by Elliott M. Root and others against Thomas Sweeney. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Where the representative of the foreign corporation is vested with the title, he may maintain an action by virtue of such title, as owner of the property. Murfree, For Corp. § 485; Relf v. Rundle, 103 U. S. 222; Avery v. Safe Co. 72 Fed. 700; Toronto Trust Co v. Railroad, 121 N. Y. 37; Thomp. Corp. § 7334-7346.

<p>1. A corporation, trustee in a mortgage, withlpower on default to take possession ot' the mortgaged properly, and also to foreclose I.bo mortgage on default being made appointed an attorney as its agent, with authority to'foreclose tlio mortgage, and to take whatever action was necessary to protect the interests of the trustee. The attorney sued to foreclose in a federal court, but without asking for a receiver, took possession of the property under the power contained in the mortgage, which he held until ousted by a receiver appointed for the mortgagor by a st i.te court Held, that his authority was broad enough to enable him to bind the trustee for the expenses incurred in taking an appeal in its behalf from the order of the state court appointing the receiver, and which resulted in his regaining possession of the property; such action being necessary or’proper for effecting the purpose of his agency, within Comp. Laws, § 3981.</p> <p>2. ft is not reversible error for a court to refuse to strike out testimony of Statements of a purported agent as to hie agency, admitted without objection, although no independent proof of the agency had previously been made, where such proof was afterwards supplied.</p>

Hon. A. W. Campbell, Judge. Action at law to recover amount of deficiency, on mortgage foreclosure. Plaintiff had judgment, and defendant mortgage company appeals. The extension contract is not the contract of the' Ormsby Land & Mortgage Co. Haverhill Ins. Co. v. Newhall, 1 Allen 130; Fiske v. KLdridge, 12 Gray, 476; Sturtevant v. Hall, 59 Me. 172; Barker v. Ins. Co. 3 Wend. 94; Powers v. Briggs, 79 111. 493; Moss v. Livingston, 4 Comst. 208.

<p>Appeal from circuit court, Brookings county. Hon. J. O. Andrews, Judge.</p> <p>Action by George R. Finch and others, suing as surviving members of the firm of Finch, Van Slyck, Young & Co., against H. A. Park and F. F. Grant, composing the partnership of Park & Grant. From an order overruling a demurrer to the complaint, defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>A complaint alleging that plaintiff was in possession of, and the owner of certain personal property on a day named, and that on the same day defendants wrongfully converted the same, sufficiently alleges the ownership and possession of the property by plaintiff at the time it was taken by defendant.</p>

Hon. Joseph W. Jones, Judge- Action on promissory note. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. The agreement of extension, being in writing, implied a consideration and was sufficient to.sustain the plaintiffs promise, § 3538, Comp. Laws Subd. 2 and 3; Corbett v. Clough, 8 S. D., 176; 65 N. W., 1074.

<p>Appeal from Minnehaha county court. Hon. W. A. Wilkes, Judge.</p> <p>Action by Oscar Cedarberg against O. E. Guernsey and another. Prom a judgment in favor of plaintiff, defendant Guernsey appealed.</p>

Hon. Frank B. Smith, Judge. Action by William McFarland against William Schuler to recover the value of certain personal property on which an attachment was levied, and which defendant, as sheriff, refused to sell under an execution. From a judgment in favor of defendant, and an order denying a new trial, plaintiff appeals. That the property is owned by another person than the judgment debtor,.is a complete defense to the sheriff in an action for not levying an attachment.

Hon. Frank B. Smith, Judge. Action for rent. From a judgment for plaintiffs, and an order overruling a motion for a new trial, defendant appeals. The facts are stated in the opinion. The agreement is void, as being within the statute of frauds, and the tenancy was from year to year. Wolke v. Fleming, 103 Ind. 105; Garret v. Clark, 5 Or. 464; Rosenblatt v. Perkins, 6 L. R. A. 257- Evans v. Winona Lumber Co., 16 N. W 404; Steele v. Brewing Ass'n, 58 N. W. 685.

<p>1. An unauthorized change in a note of the place of payment by the payee’s clerk, subsequently erased, leaving note as in the first place, will not prevent recovery.</p> <p>2. Demand for payment of note secured by clattel mortgage is not necessary prior to action by the payee to recover possession of the chattels.</p>

Hon. Frank B. Smith, Judge. Action to recover on deposit account. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion.

Appeal' from circuit court, Davison county. Hon. Frank B. Smith, Judge. Action by a wife to recover damages for the unlawful sale of intoxicating liquors to her husband. Plaintff had judgment and defendants appeal. The facts are stated in the opinion. No written notice having been given to defendant Widmann, plaintiff cannot recover. §§ 11 and 16, Chap. 72, Laws 1897.

Hon. Frank B. Smith, Judge. Defendant appeals from an order refusing to vacate an attachment and an order denying a motion to vacate and set aside the summons. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action upon promissory notes. Plaintiff had judgment and defendant Gustavus Spear appeals. An averment and proof that the payee of the notes had tendered or offered to furnish the lease, or that it was ready and willing to deliver the same, were essential elements in respondent’s cause of notion, and without such proof it cannot recover.

• Hon. Joseph W. Jones, Judge. Action by Andrew Cornwall against Charles E. McKinney, as surviving partner of the firm of McKinney and Scougal. Judgment for plaintiff, and defendant appeals. Tile facts are stated in the opinion. The action was prematurely commenced, the certificates not having been endorsed. Bellows Falls Bank v. Rutland County Bank, 40 Vt. 377; Patterson v. Poindexter, and Boker v. Hazard, 6 W. & S. (Pa.), 227. Endorsement was unnecessary.

Hon. E. G. Smith, Judge. Action by Hanson county against I. J. Gray to recover a sum alleged to be due as taxes. Demurrer to complaint was sustained, and plaintiff appeals.

Hon. J. O. Andrews, Judge. Action by Frederick T. Crewing and wife against the Minneapolis Threshing-Machiue Company to rescind a chattel mortgage and certain real estate mortgages. Judgment for plaintiffs. Defendant appeals.

Hon. A. W Campbell, Judge. Mandamus proceedings by John. Chamberlain against Frank C. Hedger and others, county board of canvassers, and Frank C. Hedger, county auditor, of Brown county to compel the canvass of the returns of an election. Judgment for defendants. Plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Fall River county. Hon. William Gardner, Judge.</p> <p>Action by James M. Sutterfield against William J. Magowan. There was judgment for plaintiff, and defendant appeals.'</p>

Hon. Loring E. Gappy, Judge. Action by Elvetta De Luce against Joseph C. Root, sheriff, to recover the possession of certain personal property. There was judgment for plaintiff, and defendant appeals.

Hon. Joseph W. Jones, Judge. Proceeding by W. J. Bell for the probate of a will; Courtney Starkweather, contestant. Prom a judgment of the circuit court on appeal admitting the will to probate, contestant appeals.

Hon. Coring E. Gaffy, Judge. Action in claim and delivery. From a judgment in favor of plaintiff, defendant appealed. This case was first decided by this court in an opinion reported in 9 S. D. 550, 70 N. W. 874, in which opinion the judgment of the trial court was modified and affirmed. Subsequently a rehearing was granted and in an opinion upon the rehearing, reported in 11 S. D. 109, 75 N. W. 896, the former opinion was affirmed. Thereafter a second rehearing was granted.

<p>Appeal from circuit court, Pennington county. Hon. Levi McGee, Judge.</p> <p>Action by Margaret Meek against Meade county to recover damages caused by defendant’s officers in opening a fence. From a judgment in favor of plaintiff, defendant appeals.</p> <p>The duty and powers of the officers of a public corporation are prescribed by statute, and every person dealing with them may know and is charged with knowing the nature of their duties and extent of their powers. Treadway v. Schnauber, 1 S. D. 237; Van Antwerp v. Dell Rapids Township, 5 S. D. 447; Hanson v. Township, 7 S. D. 38; Dillon Mun. Corp., §§ 89, 447, 556: Jay County Comm’rs v. Ferlis, 46 N. E. 699; Merriam v. Barnum, 48 Cal. 727; 7 Am. & Eng. Enc. of Law, 999.</p> <p>A county is a political division of a state and as such it is not liable in an action for damages except as imposed expressly or by necessary implication by statute, being, a part of the state government, it partakes of the state's immunity from liability. Gilmore v. County of Contra Costa, 68 Am. Dec. 291; Bailey v. Lawrence County, 5 S. D. 398; Vail v. Town of Armenia, 4 N. D. 239; Erskine v. Steele County, 4 N. D. 339; Comm’rs v. Mighels, 7 Ohio St., 109; Wehn v. Gage County, 5 Neb. 494; 2 Dillon Mun. Corp., Sections 961, 963, 965 and 966; 1 Dillon Mum. Corp., Sections 22, 23 and 66; Boone Corp., Sections 319 and 314; Askew v. Hale County, 54 Ala. 731; Hill v.. City oí Boston, (Mass.) 23 Am. Rep. 333; Laramie County-v. Albany County, 92 U. S, 554; United States v. Railway Co., 17 Wall. 600; Anthony v. Adams, 1 Metcalf, 284; Monroe County v. Flint, 6 S. E. 173; White Star Steamboat Co. v. Gordon County, 7 S. E. 231; Barnett v. County of Contra Costa, 7 Pac.' 177; Sherbourne v. Yaba County, 21 Cal. 113; Crowell v. Sonoma County, 25 Cal. 313; Symonds v. Clay County, 71 Ill. 355; Hollenbeck v. Winnebago Co. 95 Ill.,148;Estep v.Keokuk County; 18 la. 199; 2 Thomp. Neg. 734. If the contract was within the powers of the county commissioners, the duty of seeing to its performance devolved upon the county officers and they alone and not the public are liable for any damages which may occur to the plaintiff by reason of non-performance or improper performance. County Comm’rs v. Duckett, 20 Md. 468; Id. v. Gibson, 36 Md. 229; Hoover v. Barkhoof, 44 N. Y. 113; Cooley Torts, 400; Huffman v. San Joaquin County, 21 Cal. 426; Crowell v. Sonoma County, 25 Cal. 313; Summers v. Daviess County, 2 N. E. 725; Caldwell v. Boone, 2 N. W. 614; Benton v. Trustees, 1 N. E. 337; Bryant v. St. Paul, 23 N. W. 221; Larkin v. Saginaw County, 82 Am. Dec. 63.</p> <p>The statutes having conferred on the board of county com missioners the power to establish the public road in question, the irregular exercise of the power does not render the acts and contracts of the board ultra vires. Nat’l Tube Works y. City of Chamberlain, 5 Dak. 54; McGuire v. Rapid City, 6 Dak. 346.</p>

<p>Appeal from circuit court, Brule county. Hon. Frank B. Smith, Judge.</p> <p>Action by Frank B. Wallace against the Singer Manufacturing Company to recover damages for an alleged wrongful use of civil process. From a judgment for defendant plaintiff appeals.</p>

Hon. Frank B. Smith, Judge. Action by F. W. Parkinson against Lewis P. Shew, and others to recover upon a bond. From an order sustaining a demurrer to defendants’ counterclaim, defendants appeal.

Hon. J. O. Andrews, Judge. Action by Theodore Meyer and another against the Davenport Elevator Company to recover the value of certain wheat. Prom a judgment for plaintiffs and an order overruling a motion for a new trial, defendant appeals.

Hon. J. O. Andrews, Judge. Action by G. A Lindskog, as sheriff of Brookings county, againt N. A. Schouweiler and another, co-partners as Schouweiler Bros., and Thomas Lavin,for money received for plaintiff’s use. From a judgment of the circuit court affirming a judgment of the justice court for plaintiff, defendants Schouweiler Bros, appeal.

Hon. Prank B. Smith, Judge. Action by the Bank of Iowa & Dakota, a partnership, against M. M. Price and another, to foreclose a chattel mortgage. Prom a judgment in favor of plaintiff, defendant M. M. Price appeals.

Hon. Joseph W. Jones, Judge. Action by George H. Brace and another against William Van Bps, to settle adverse claims to realty. From a judgment in iavor of plaintiffs, defendant appeals.

<p>1. Where D., though having- the legal title to land, held it as trustee for plaintiff, and conveyed it to him, but before the deed was recorded defendant.commenced action against D., attached the land, and filed Us pendens, recovered judgment, and threatened to sell the land on execution, there is a right of action, under Comp. Laws, § 4044, providing-that a written instrument, in respect to which there is ”a reasonable apprehension that, if left outstanding, it may cause serious injury'’ to a • person against whom it is void, may, on application, be ordered to be canceled.</p> <p>2. Complaint states a cause of action, under Comp. Laws, § 5449. providing, “an action may be broug-ht by one person against another who claim* an estate or interest in real estate adveise to him, lor the purpose ol determining such adverse claim,” where it alleges that 1)., having the legal title to land but bolding it as trustee for plaintiff, convoyed it to plaintiff, but thereafter, before the deed was recorded, defendant commenced action against D., filed attachment and lis pendens against the land, recovered judgment, and threatens sale or execution thereon.</p>

<p>1. When costs are improperly taxed against a party, his remedy is by a motion to have the judgment modified, and not by appeal.</p> <p>2. Where an action is based on affidavits only, and no case is made or served, nor in fact necessary, an allowance in a bill of costs for “making and serving case” is erroneous.</p> <p>3. Where the record on appeal consists of affidavits and orders only, and no bill of exceptions or statement of the case is required, an item in plaintiff’s bill of costs for stenographer’s fees to perfect appeal record and resisting appellant’s motion” will not be allowed, when charged for stenographer’s services in the trial court.</p> <p>4. Stenographer’s fees in preparing affidavits in the appellate court cannot be allowed in a bill of costs.</p> <p>5. When an additional abstract is necessary to properly present questions involved to an appellate court, an item for printing the same is a proper charge in a bill of costs.</p>

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>Action by the American Banking & Trust Company against J. W. Lynch. From a judgment for plaintiff, defendant appeals.</p> <p>Memorandum -opinion.</p>

Joseph B. Moore, Judge. Clarence L. Bradford was indicted for a violation of the liquor laws. From an order sustaining a demurrer to the indictment, the state brings error. Article 27, Const., is not self-executing. Cooley, Const. Lim., 6th Ed., p. 99, et seq.; State v. Swan, (N. D.) 44 N. W. 492; Hayes v. Hayes, 47 Pac. 732; Willis v. St. Paul Sanitation Co., 48 Minn. 150, 16 L. R. A. 285; Morley v. Thayer, 3 Fed. 737; French v. Teschemaker, 24 Calif. 539; 6 Am. & Eng.

Hon. Loring E. Gappy, Judge. Action by Caroline E. Zipp against the Colchester Rubber Company to recover damages for an alleged breach of contract There was a judgment for plaintiff, .and defendant appeals. Secondary evidence to prove the contents of original papers, documents or letters in the possession or under the control of the opposite party is not admissible until after a seasonable notice to produce has been given and a failure to so produce.

<p>Where respondent alleged in an additional abstract that no'bill of exceptions or statement of t.he case was ever settled, and proceeded to set out a transcript of the stenographer’s notes, being no part of the record, the cost of printing- such transcript will not be allowed.</p>

Hon. William Gardner, Judge. Action by the First National Bank of Rapid City against Michael McGuire to foreclose a pledge. From a judgment, for plaintiff, and from an order denying a new trial, defendant appeals. When a judge is a stockholder of a corporation, he is, both at common law and under our statute, disqualified, by pecuniary interest, to try or determine any cause to which the corporation is a party. Cooley Cons. Limit. 411-413; Washington Ins.

Hon. William Gardner, Judge. Bill by Granville G. Bennett and others against the Consolidated Apex Mining Company and others to set aside certain mortgages and to subject certain property to the payment of a judgment. From an order appointing a receiver, defendants appeal.

Hon. William Gardner, Judge. Action by John J. Farrar against the Consolidated Apex Mining Company From an order refusing to set aside a default judgment, defendant appeals. The concealment of the service by the director Swander from the managing officers of defendant corporation was sufficient cause to authorize the court to open the judgment and let the corporation in 'to defend. Wilsey v. Horse Ranch Co. 7 S. D. 114; Sturm v. School District 47 N. W. 462.

William Gardner, Judge. Action by the First National Bank of Rapid City against James Keenan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Memorandum opinion.

Hon. Frank B. Smith, Judge. Proceedings by the city of Mitchell against J. K. Smith, city auditor, etc., to compel the signing, attesting and delivery of certain refunding bonds. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from circuit court, Meade county. Hon. A. J. Plowman, Judge.</p> <p>Action by Peter A. Smith against Runkel, Rowley & Co. From an order overruling a motion to discharge an attachment, defendant appeals.</p> <p>Memorandum opinion.</p>

Loring E. Gappy, Judge. Action by James Stuart and others against Joseph Kirley and others. Prom an order denying an injunction to restrain defendants from giving notice of the submission of the question of a change of county boundaries, plaintiffs appealed. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. David Donaldson was indicted for keeping his saloon open on Sunday. Prom a judgment overruling his demurrer to the information, he brings error. The facts are stated in the opinion.

Hon. Julian Bennett, Judge. Joseph Levers was convicted of.burglary, and brings error. The facts are stated in the opinion. The evidence was insufficient to support a verdict of “guilty.” The only evidence tending to connect the defendant with the commission of the crime was that of an accomplice, and it being entirely uncorroborated was incompetent to sustain a conviction. § 7384 Comp. Laws; Neubrant v. State, 53 Wis. 92; Stone v. State, 3 Tex.

Hon. A. W. Campbell, Judge. Action by James W. Barnes against Foster R. Clement to recover money paid on a land contract. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. The facts are stated in the opinion.

Hon. E. G-. Smith, Judge. Action to foreclose a real estate mortgage. Defendants had judgment and plaintiffs appeal. This case was first determined by this court in an opinion filed Nov. 19, 1897, reported in 10 S. D. 276, 73 N. W. 97. In' that opinion the judgment of the trial court was reversed. A rehearing was ordered January 22, 1898. This opinion is upon the rehearing.

Hon. Frank B. Smith, Judge. Action by George Deindorfer and Sabrina Deindorfer against Paulina Bachmor to set aside proceedings for the foreclosure by advertisement of a mortgage upon real property, and to vacate and set aside a deed based thereon from a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by F. B. Fargo & Co. against J. E. Graves. From an order dismissing an appeal from a justice’s court, defendant appeals. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action by the Studebaker Bros. Manufacturing Company, a corporation, against Lafayette Zollars, as sheriff, and others to recover damages for failure to levy certain executions upon the personal property of certain judgment debtors. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion.

Hon. Prank B. Smith, Judge. Action by the state, on the relation of W. H. Tompkins and others, as railway commissioners for the state of South Dakota, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Prom an order overruling a demurrer to the petition, defendant appeals. The facts are stated in the opinion.

Hon. Julian Bennett, Judge. Application for mandamus by John Swenehart against Charles Strathman and others, constituting a district school board. From an order overruling a demurrer to the petition, defendants appeal. The facts are stated in the opinion. The acts sought to be enforced by the writ rest in the sound discretion of the school board, and its action thereon cannot be coerced by mandamus. Suth. Stat. Const. § 460, 14 Am. & Eng. Enc. of Law 140; 13 Am.

Hon. Joseph W. Jones, Judge. Action by B. H. Lien against the Sioux Falls Savings Bank, for conversion of certain personal property. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by J. G. Irving against W. H. Dockstader. Judgment for plaintiff. Defendant appeals.</p>

Hon. Joseph B. Moore, Judge. Action by Robert E. Hurlbut against John A. Leper, to recover for work and labor. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. In an action upon an express or special contract for services evidence of an implied contract to pay the reasonable value thereof is incompetent.

Hon. E. G. Smith, Judge. Action by Walter A. Loomis against Francis Le Cocq and. others to foreclose a mortgage upon real property. From a judgment for plaintiff defendants appeal.

Hon. J. O. Andrews, Judge. Action by E.' C. Olson against the Burlington, Cedar Rapids & Northern Railroad Company to recover damages for personal injuries. Prom a judgment for plaintiff, defendant appeals.

Hon. J. W. Jones, Judge. Action by the Savings Bank of Larchwood against George W. Snook for the conversion of certain wheat. From a judgmen for defendant, plaintiff appeals. On death of defendant, E. H. Canfield and Joseph L. Snook, executors, were substituted. The facts are stated in the opinion. The unrecorded lease under which respondent claims was in effect a chattel mortgage.

Appeal-from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge. Action by Thomas Wagner and another against Nyrum E. Phillips. Judgment for defendant. Plaintiffs appeal. The facts a're stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by the state against Stephen Welbes and others to recover upon an official bond. From a judgment for certain defendants, the state appeals. The facts are stated in the opinion.

<p>1. The complaint and subsequent proceedings in suit to foreclose a mortgage, which described the premises as “lot 22, in block 5, according to the map of the city of D., compiled by R.. said premises being known as the‘H. & H. lot,’ situated on M. street,” having described' the premises as “lot 21, in block 5, according to the map of the city oí D., prepared by S., the same being designated as lot 21, in block 17, on the map of the city of D..prepared by R., being on M. street, and known as the H. & H. lot,”’ and there having been no lot 21 in block 5 of the S. map, or in block 17 of the R. map, so that no one could have been misled by the mistake, the description as “lot 21” will be treated as surplussage, and title acquired under the foreclosure proceedings will be quieted against a defendant in such proceedings who appeared and answered therein.</p> <p>2. The allegations of a complaint cannot be shown to be untrue on appeal from order sustaining demurrer thereto.</p>

Hon. Loring E. Gaffy, Judge. . Action by the town of St. Lawrence and others, on behalf óf themselves and all other taxpayers similarly situated to obtain an injunction to restrain the removal of a certian building froni the town of St. Lawrence against Peter Gross. Prom an order sustaining a de nurrer to the complaint, plaintiffs appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Moody county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Whitfield, Powers & Co. against Charles K. Howard. From an order denying a motion to vacate and set aside a judgment upon default for plaintiffs, defendant a'ppeals</p> <p>The records and evidence show no service of process upon appellant. The circuit court therefore was without jurisdiction the default judgment rendered by it void and it should be vacated and set aside. Harris'v. Hardmann, Í4 How. 337; § 5103 Comp. Laws; St. Cruix Lumber Co. v. Pennington, 2Dak. 467; Weeks v. Go’d Min. Co, 73 Cal. 599; Reinhart v. Lergo, 86 Cal. 395; McKinlay v. Tuttle, 42 Cal. 570; Trimble v. Langworth, 13 O. St. 431; Thompson v. Whitman, 18 Wall. 457; Ferguson v. Crawford, 70 N. Y. 253; Danis v. Southard, 51 N. Y. Sup. 1136; Nuscomb v. Dewey, 27 la. 381; Clark v. Little, 41 la. 497; Huitt v. Skinner, 68 N. W. 788; Brittell v. Deffibach, 60 N. W. 167; Massillon Eng. & Thrash. Co v. Hubbard, 77 N. W. 588.</p> <p>Every court has the right in the first instance to determine its own jurisdiction, 12 Am. & Eng. Euc of Law, 307. The presumption is that public officers do their duty. This presumption extends to courts of general jurisdiction. Van Walters v. Boardete, 18 L. R. A. 431: Brown’s Jurisdiction of Courts, 22; Cole v. Fair, 3 S. D. 272; Kent v. Ins. Co., 2 S. D. 325; Tolman v. Savage, 5 S. D. 496; Howard v. City v. Huron, 60 N. W. 803,</p> <p>The presumption entertained in f^vor of the jurisdiction of courts of general jurisdiction makes it unnecessary that the facts giving jurisdiction, should appear on the record. 20 Ana. & Eng. Enc. of Law, 495; Williams v. McGrade, 13 Minn. 46; Ogden v. Waters, 12 Kan. 282; O’Brien v. Gaslin, 30 N. W. 274; Nye v. Swan, 54 N, W. 9; 'Hersey’v. Walsh, 38 N. W. 521; Herrick v. Butler, 14 N. W. 794. Lack of jurisdiction must be proved with the greatest strictness. If the summons was not served in the way defendant swears it was not, the presumption is it was served in some other legal way. Provident V- Ford, 5 Sup. Ot. Rep. 1104; Hoge v. Ogle, 70 N, W. 940; Stoddard v. Mattice. 72 N. W. 891. If the judgment was valid at the time it was entered it is still valid. The loss of the original papers would not invalidate it. 2 Black on Judg. 969; People v. Harrison, 24 Pac. 311; 2 Freeman on Judg. 407.</p> <p>An officers return of personal service cannot be overcome by the uncorroborated evidence of the defendant. Mace v. Mace, 48N. Y. Sup. 83L: Waite v. Sherman, 6L Wis. 119; Stewart v. Lawrence, 65 N. W. 672; Vaule v. Miller, 72 N. W. 452; Jensen v. Creviere, 23 Minn. 541; Randall v. Collins, 58 Tex. 231; Starkweather v. Morgan, 15 Kas. 274; Allen v. McIntyre, 56 Minn. 351.</p> <p>When the court granted the order allowing execution to issue it necessarily determined that plaintiff had a valid judgment and its determination is res adjmlicata. Comparte v. Hanna, 34 Ind. 74; Kelly v. Donlin, 70 111. 378; Ouster v. Detterer, 3 Wat. & S. 28; Frusht v. Overder, 19 Ind. 470, Lylltev. Smyser, 10 Pa. 381; Zerns v. Watson, 11 Pa. 260; Lyon v. Cleveland, 30 L. R. A. 400; Black on Judgments, Sec. 691 et seq. Id. 493; Johnson v. Satte, 84 Md. 139; 21 Am. & Eng. Enc. of Law, 232; Adams v. Ash, 46 Hun. 105; Gould v. Root, 4 Hill 554; Star v. Francis 22 Wend. 633; Hunt v. Wallis, 6 Paige 37.</p>

Hon. A. W. Campbell, Judge. Proceeding by Stephen Pelletier and others against the city of Ashton to have certain territory excluded therefrom. Prom a judgment for plaintiffs, defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Brookings county. Hon. Julian Bennett, Judge.</p> <p>Action by Albert C. Larpenteur against George A. Willians to recover back a part payment on a promissory note. Judgment for defendant. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>An agent has such authority as the principal actually or ostensibly confers upon him and when one holds another, out to the world and accredits him as his agent, in determining the liability of the principal, the question is not what authority was intended to be given to the agent but what authority were third persons 'dealing with him justified from the acts of the principal in believing was given to him. Aldrich v. Wilmarth, 3 S. D. 523; Griggs v. Seldom 58 Vt. 561; Watch v. Ins. Co. 73 N. Y. 5; 1 Am. & Eng. Enc. of Law, 2nd Ed. 962-964; Comp. Laws §§ 3965, 3972, 3906, 3980; McLaughlin v. Wheeler, 47 N. W. 816; Reed v. Kellogg, 67 N. W. 687.</p> <p>There was a complete ratification of the-agent's acts by his principal. A principal must ratify an agent’s acts in whole and not in part. Union Trust Co. v. Phillips, 63 N. W. 903; Wyckoff v. Johnson, 58 N. W. 837; l Am. & Eng. Enc. of Law 1192; Comp Laws § 3973; Singer Mfg. Co, v. Flynn, 65 N. W. 923; Express Co. v. Rissen, 6 N. E. 337; Miles v: Ogden, 12 N. W. 81; Elwillv. Chambeidain, 31 N. Y. 611; Bacon v. Johnson, 22 N. W. 276; Maddux v. Beavin, 39 Me. 485; Pitts v. Shubert, 30 Am. SJ c. 718; Bryant v. Moore, 26 Maine 84; 1 Lawsons Rights Rem. &. Proc. 44-46; Bank v. Bank, 68 N. W. 488.</p> <p>' The rule of voluntary payment is only applicable to cases, where such payment is made knowingly upon some legal or moral obligation in the absence of mistake or fraud or misrepresentation. 18 Am. & Eng. Enc. of Law 225-228. 'When money is paid under mistake of fact it may be recovered. 18 Am. & Eng. Ency. of Law, 225-226. If a party acts on the misrepresentations of another he may recover for payments made under mistake of law. Whilm’s • Appeal, 70 Pa. St. 410; Bank v. Bank, 3 Mass. 74; Caldwell v. Maxwell, 64 N. W.' 166; Ind. y. McAvoy, 86 Ind. 587; Mya v. Schinnebarger, 17 Mo. App. 66; Dobson v. Winner, 26 Mo. App. 329; Lawrence v. Bank, 54 N. Y. 432; Mayor v. Mayor, 63 N. Y. 455; Alston v. Richardson 51 Tex. 1.</p> <p>Authority 1o sell property as agent and take a note in payment in name of the principal, does not-of itself include authority to recover payments of the note. Draper v. Rice, 7 N W. 560. Agency cannot be proven by the agents declarations. Gordon y. Loan Co., 71 N. W. 556; Loverin Brown Co. v. Bank, 75 N. W. 923. One dealing with an agent must ascertain at his peril the existence of the ageney and the scope of authority. Fargo v. Cravens, 9 S. D. 646; Elbs v. Wait, 4S. D. 454; Kirby v. Scraper Co., 9 S. D. 625. Actual or ostensible authority to collect anote does not carry with it authority, to accept; anything but cash in payment. Furniture Co. v. Mason, 3 S. D. 147; Toy Co. v. Ins,. Co., 3 S. D. 205; 6 Ency of PI. & Pr. 686; Bronze Co. v. Port.rey, 70 N. W. 383; Moore v. Pollock, 70 N. W. 541; Richards v. Walker, 68 N. W. 1053; Rogers v. Peck-ham, 52 Pac. 483; Campbell v. O’Connor, 76 N. W. 167.</p> <p>It is not the attempting to recover or return the benefit of the act with notice thereof that constitutes ratification but it is the actual accepting or retaining the benefit of the act with notice thereof. Comp. Laws § 3972; Fargo y. Cravens, 9 S. D. 646; Gilman v. Norton, 56 N. W. 663; Osborne v. Klim, 25 N. W. 360.</p> <p>Since plaintiff bases his right to a recovery upon the fact that after partial payment defendant transferred the note to an innocent purchaser to whom plaintiff again became liable to pay the note iri full, he must establish this subsequent liability and that such purchaser was an indorsee in due course. The note was payable to defendants order and it was necessary to a recovery to establish actual endorsement by him. Vickery v. Burton, 69 N. W. 193; Trust Co. v. Twitchell, 75 N. W. 786; 4 Am. & Eng.-Enc. of Law, 252, 230, 311; Grant v. Clark, 78 N. W. 364; Schroeder v. Neilson, 57 N. W. 995; Johnson v. English, 74 N. W. 47; Levy v. Cunningham, 76 N. W. 882; Comstock v. Kerwin, 77 N. W. 387.</p>

Hon. J. O. Andrews, Judge. Action by George Brown against Albert Brown. Judg ment for defendant. Plaintiff appeals. The facts are stated in the opinion. The deposit of the amount of the judgment and costs did not obviate the necessity of giving the undertaking for costs required by Section 6133, Comp. Laws, to make an appeal from a justice of the peace effectual for any purpose. The circuit court therefore did not acquire any jurisdiction of the case.

Hon Joseph B. Moore, Judge. Application of Grant Heatly Tod for a writ of habeas corpus. The application was denied, and*the prisoner remanded to custody, and from an order denying a new trial he appeals. The facts are stated in the opinion.

Hon. Julian Bennett, Judge. Action by David Waterhouse against the Joseph Schlitz Brewing Company to recover damages for personal injuries, caused by the falling of a building owned by defendant. From an order overruling a demurrer to the complaint, defendant appeals. The complaint was'demurrable for the reason that it did not allege that defendant had anything to do with the construction of the building.

Hon. Joseph W. Jones, Judge Action by Annie M. Baker against Milo Hogaboom and others to recover damages for the removal of a fence and the destruction of growing corn. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion.

’ Appeal from circuit court, Faulk county. Hon. Boring E. Gaffy, Judge. Action in claim and delivery by the First National Bank of Custer City against Israel Calkins. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. The court erred in admitting in evidence the judgment roll in the case of Calkins v. Perkins and in not permitting the plaintiff to dispute the findings of alleged facts upon which the decree in that case was based.

<p>Under Comp. Laws, § 7312, ns amended by Laws 1891, Chap. 50, authorizing-the presiding-judge, when an affidavit of prejudice is filed, to call in another judge to try the case, it is reversible error for the judge from whom the change was taken to receive the verdict.</p>

Hon. A. J. Plowman, Judge. Action by John Doyle against the Grand Island & Wyoming Central Railroad Company and others to establish and enforce a mechanics lien. Prom a decree in favor of plaintiff defendants other than defendant A. H. Pitch appealed. Pending the appeal plaintiff assigned all his interest in the action to William E. Adams who was substituted as plaintiff.

Hon. Julian Bennett, Judge. Action in claim and delivery by Maria Ecker against G. A. Lindskog. Prom a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.

Hon. Loring E. Gappy, Judge. Action by the State of South Dakota against William H. Roddle to recover certain moneys received by defendant, as a member of the brand and mark committee, while holding the office of secretary of state. Prom a judgmentfor defendant, the state appeals. The defendant while acting as secretary of state could not receive additional compensation for his own use for his services' on the brand and mark committee.

Hon. Loring E. Gaffy, Judge. Action by Thomas Kane & Co. against Hughes county, upon a county warrant. From a judgment for plaintiff, defendant appeals. When a warrant is drawn on a special fund, the cause of action accrues when there is money in such fund not otherwise appropriated. Wetmore v. Monona, 73 Iowa, 88; Grayson v. Latham, 48 Ala. 546; County v. Lunning, 133 U. S. 529. A county cannot be sued, except where it is so provided by law. Monroe v. Flint, 6 S. E 173.

Hon. W. A. Wilkes, Judge. Replevin by the Plano Manufacturing Company against Swan Person. Prom a judgment for defendant, plaintiff appeals Misrepresentation and fraud constitute affirmative matter which must be alleged and proven.

Hon. Joseph W. Jones, Judge. Action by Herbert Kettlesch’ager against Mike Ferrick and another, to set aside as fraudulent a deed to real property. From a judgment for defendants, plaintiff appeals. A homestead cannot be legally transferred by a husband to his wife without consideration and for the purpose of withholding such property from existing and subsequent creditors in case they should remove therefrom and with other funds purchase and occupy a different homestead.

Hou. Julian Bennett, Judge. Condemation. proceedings by the board of supervisors of Lincoln township, Clark county, against Anna Schuler and another. . From a judgment of the circuit court increasing the amount of damages awarded defendants, the board appeals.

Hon. Joseph B. Moore, Judge. Proceedings by county of Meade against Max Hoehn and others to determine where certain personal property should be assessed for the purposes o'f taxation. Prom a judgment for plaintiff, defendant John G. Wenke appeals. Cited: Chap. 65, Laws 1890; Parris v. Yannier, 6 Dak. 186; Dupree v. Stanley county, 8 S. D. 30. Cited contra: Knapp v. Chas.

Error, to circuit court, Butte county. Hon. Joseph B. Moore, Judge. George Evans was convicted of grand larceny, and from an order denying his motion foy a new trial he brings error.-

Hon. A. W Campbell, Judge. Action by A. A. Miller against Edward G. Kennedy and others to foreclose a mortgage on real property. Prom that portion of the decree which adjudges the defendant Edward G- Kennedy not liable for a deficiency after sale. Plaintiff appeals. The relations between a mortgagee and mortgagor cannot be changed by the assumption by a mortgagor’s grantee of the mortgage debt, until the mortgagee has accepted the assumption or claimed some benefit under it.

Hon. A. W. Campbell, Judge. Action by H. A. Kaeppler against the Redfield Creamery Company to recover for certain labor and lumber. Judgment for plaintiff, and defendant appeals.

<p>Where an attachment affidavit charged that defendants had disposed of a part of their property with intent to defraud creditors, and were about to dispose of the balance thereof with such intent, and that the debt was incurred for property obtained by false pretenses, it was error for the court to vacate a writ issued thereon on defendants’ motion, he having failed to deny that the debt was incurred for property obtained under false pretense», since by Comp. Laws, 4995, subd. 3, such allegation was alone sufficient to entitle plaintiff to an attachment.</p>

<p>1. In an action for malicious prosecution in causing' plaintiff’s arrest for breaking and entering a dwelling' bouse, a recorded contract of sale by the owner of the property to plaintiff’s husband was admissible to show that defendant bad cause to believe that plaintiff and her husband had a right to enter the premises.</p> <p>2. Plaintiff and her husband, on returning to their home after an absence of six weeks, found the house locked, and were refused admission by defendant’s' servants. Plaintiff’s husband broke a window, and entered the house, and admitted plaintiff; whereupon defendant procured the arrest of both. Held, that defendant, had no probable cause for plaintiff’s arrest, since it did not appear that she took any direct part in the breaking.</p> <p>3. Comp. Laws, [i 6221, provides that a subjection sufficient to excuse a wife from punishment for certain crimes may be inferred from the fact of coverture, when she committed Ihe act charged in the presence and with the assent of her husband. Held, that Id. 4 2600, providing that married women shall retain the same legal status after marriage as before, and conferring on them rights not previously possessed, does not subject a wife to prosecution for a crime committed in the presence of, and with the assent of, her husband, from which she would be otherwise immune under Section 6221.</p> <p>4. In an action for malicious prosecution, where defendant had plaintiff arrested without probable cause while siclt, and plaintiff was not treated wilh proper care or consideration hy the constable, a verdict of $1,000 will not be set aside as excessive, though greatly in excess of the actual expense to which plaintiff was subjected by reason of the arrest.</p>

Hon Joseph B. Moore, Judge. Action by William Green, administrator, etc., against William W. Sabin and others, to recover the amount, of a judgment in plaintiff’s favor against defendants. From a judg ment for defendants, plaintiff appeals.

Hon. Joseph T3. Moore, Judge. Proceedings by Meade county against Max Hoelan and others. From a judgment for plaintiff, defendant C. K. Howard appeals. The prior assessment of appellants property in Stanley county and the payment by him of the taxes levied thereon in that county is a bar to the assessment of the same property in Meade county. Laws 1897, Chap. 28, §§ 33, 42.

<p>Appeal from circuit court, Campbell county. Hon. Loring E. Gaffy, Judge.</p> <p>Action by R. A. Brown against James M. Brown and John Alexander to foreclose a real estate mortgage. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Under Comp. Laws, §§6129, 6131, providing for appeals from judgments rendered in a justice’s court, defendant was entitled to a new trial in the circuit court on an appeal from a judgment by default in a justice’s court, as though there had been no default.</p> <p>2. Where the circuit court has no jurisdiction of an appeal from a justice, an affirmance of the judgment below is error.</p>

Hon. JosephB. Moore, Judge. Bill by Melissa E. Lothrop against Arthur H. Marble, administrator of Ransom Rathbone, deceased for specific performance of a contract. From a judgment for plaintiff, defendant appeals.

Hon. A. J. Plowman, Judge. Action by the city oí Deadwood against Thomas Whittaker to recover a portion of a street. Prom a judgment for plaintiff, defendant appeals.

Hon. A. J. Plowman, Judge. Action by Thomas Whittaker against the city of Deadwood to recover certain moneys for the use and occupation of certain realty as a street by the defendant. From a judgment for defendant, plaintiff appeals.

Hon. A. W. Campbell, Judge. Action by Alonzo Chase against the Redfield Creamery Company for the recovery of rent. Judgment for plaintiff, and defendant appeals. It was error to admit in evidence testimony of oral agreements varying or tending to vary the terms of the written memorandum. St Louis Ry.

Hon. A. W. Campbell, Judge. Action by Etherial Wilson against the board of education of the city of Huron, to recover upon certain funding bonds. Judgment for defendant, and plaintiff appeals. The Board of Education of the City of Huron is a corporation distinct and separate from the city of Huron. It is not a mere department of the city.

<p>1. Though the time of appeal from an order granting an association the custody of plaintiff’s children had expired, the court had jurisdiction to consider plaintiff’s petition for an order granting him their custody, when such petition alleged that since the former order his circumi stances had changed, and that he was now able to provide and care for them, since such petition is not to review or reverse the former order, but is to procure a new judgment on a new state of facts.</p> <p>2. Under Laws 1897, Chap. G7, providing that, on petition for the appointment of a guardian for minor children, the court may order their surrender to certain associations, such order is a substitute for the appointment of a guardian; and hence, under Comp. Laws, § 2650, permitting the removal of guardians when it is no longer proper that the ward be under guardianship, the court had jurisdiction of plaintiff’s petition lor custody of his children, who had been surrendered to such an association.</p> <p>3. Plaintiff being a resident of the county in which he petitioned the court for the custody of his children, they being presumptively residents of the same county, the court had jurisdiction to consider his petition, and enter an order granting him their custody.</p>

<p>Appeal from circuit court, Meade county. Hon. Joseph B. Moore, Judge.</p> <p>Proceedings by the county of Meade, S. D., against Max Hoehn and others. From a judgment for plaintiff, defendant Bland Herring appeals.</p>

■ Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge. Action by L. Linn Small, as receiver of the American Banking & Trust Company, against E. J. Elliott, impleaded with others upon certain promissory notes. From a judgment for defendant, and an order denying his motion for a new trial, plaintiff appeals. The answer of defendant Elliott did not state facts sufficient to constitute a defense to the action.

Hon. Levi McGee, Judge. Action to foreclose a mortgage by George A. Sutton and others against the Consolidated Apex Mining Company and others. Prom a judgmeut adjudging certain liens prior to the mortgage, plaintiffs appealed. After a sale of the mortgaged premises under the decree, a motion was made to dismiss the appeal.

<p>1. An action on a sheriif’s bond may be brought in the name of the real party in interst, in his individual capacity.</p> <p>2. It was not error, on the ground of proving the contents of a written instrument by parol testimony, to permit a deputy sheriff to answer the question whether he had a writ of some kind or other when he seized certain property.</p> <p>3. Where deputy sheriffs had seized property in a claim and delivery action, and the clerk of the court testified that there were no papers an lile in the action, copies of the papers served on defendant were admissible, and were prima facie proof of tiie existence of the originals, and that the officers were acting thereunder when they made the seizure.</p> <p>4. The judge of a circuit court has power to administer oaths, though such power is not vested in him by statute.</p> <p>5. The fact that the appointment of a deputy sheriff was signed by the sheriff as an individual, and not as sheriff, did not invalidate the appointment, where it was otherwise in due form, and was filed with the county auditor.</p> <p>6. Where a sheriff failed to comply with Comp. Laws, § 4983, requiring the return in claim and delivery to he made within 20 days after seizure of the property, it was not neccessary for plaintiff in an action to recover property wrongfully seized to allege or prove that he had served on the sheriff the affidavit and notice of his claim required by Comp. Laws, S 4982.</p> <p>7. Where a complaint against a sheriff's sureties for the wrongful seizure of property would have been sufficient as to the sheriff, as regards demand and notice, it was sufficient as to his sureties.</p>

<p>1. Defendant levied an execution on goods more than sufficient to satisfy his " judgment, a.nd plaintiff, as a creditor of the same debtor, attached the goods in defendant’s hands. Subsequently third parties brought suit in claim and delivery, and took a part of the goods from defendant, and in a compromiso with them he released his lien on the goods taken. Ueld that, though the levy was not par se a satisfaction of defendant’s judgment, yet, the goods having been taken by him from the possession of the debtor, who was, therefore, the presumptive owner, defendant had no right to release them to others as against plaintiff, who had a valid lien, and hence defendant was chargeable to plaintiff for the value of the goods taken.</p> <p>2. The defendant, in releasing the goods, assumed liability therefor at the time they were taken and it was error for the court to exclude evidence of their value at that time, and to find their value at the time of the compromise.</p> <p>3. Defendant levied on goods more than sufficient to satisfy his judgment, and plain I iff subsequently acquired a second lien on the same by attachment. A claimant brought action in claim and delivery, and took a part of such goods, and defendant entered into a settlement with the claimant, whereby defendant released his lien. Held that, though claimant’s action was not dismissed, the settlement having virtually transferred to him defendant’s rights under the execution, plaintiff: need not attempt to proceed with such action, but was entitled to have defendant charged with the value of the goods taken.</p> <p>4. Where defendant levied on property under execution, and plaintiff acquired a subsequent lien on the same property by attachment, and ct - fondant protected himself, and incidentally the plaintiff, by defending an action brought by third parties claiming the property; it was not error, in settlement between the parties, to allow the defendant a reasonable amount for attorney’s fees incurred in such defense.</p> <p>Haney, J., dissenting.</p>

<p>Appeal from circuit court Lawrence county. Hon. A. J. Plowman, Judge.</p> <p>Action by Thomas Whittaker against the city of Deadwood and others. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Joe Kirby against Peter Muench and others, to subject certain realty to the payment of a judgment. From an order granting plaintiff leave to file a supplemental complaint, defendants appeal.</p>

Hon. Joseph W. Jones, Jndge. This case was determined by this oourt in an opinion: filed June 26, 1899 found in 11 S. D. 566; 79 N. W. 840 in which opinion the judgment of the trial court in favor of defendants was reversed.

Hon. Julian Bennett, Judge. Action by L. Long against D. D. Collins, sheriff, and the First National Bank of Clark, to recover the value of personal property sold by defendants under an execution after the-same had been claimed as exempt. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Hon. A. J. Plowman. Judge. Action by William H. Male and others against James E. Harlan and others. The plaintiffs appeal from that part of the decree which was adverse to them.

<p>Appeal from circuit court, Aurora county. Hon. Frank JB. Smith, Judge.</p> <p>Action by Jolin Mettel and others, co-pariners, against Mike Gales and others, to recover a balance alleged to be due, for sinking and completing an artesian well. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant Mike Gales appeals.</p>

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>Action by H. Ray Myers against John Longstaff, Motion to dismiss plaintiff’s appeal from a judgment in favor of defendant.</p>

<p>1. A warehouseman, whose agent fraudulently issues a receipt for grain, which has not been received, is estopped to deny that the grain mentioned in the receipt has been received, as against a bona fide holder for value.</p> <p>2. A statute prohibiting'a warehouseman from issuing a receipt for goods not actually received will not allow him to prove, in an action by a bona fide holder for value, that a receipt fraudulently issued by his agent for grain not received is false, and that the grain mentioned therein never existed.</p> <p>3. In an action by a bona fide holder for value to recover on a warehouse receipt fraudulently issued by the warehouseman’s agent, it is proper to limit the recovery to the amount paid for the receipt.</p>