Volume 12 — Wyoming Reports

Original proceeding in mandamus instituted by Feni-more Chatterton, Secretary of State and Acting Governor, to require LeRoy Grant, as State Auditor, to issue and deliver to the relator warrants in payment of salary claimed to be due him as Secretary of State and also as Acting-Governor for the month of May, 1903. The cause was heard on demurrer to the petition.

Joseph E. Stotts, Judge. The plaintiff in error was convicted of the crime of grand larceny and prosecuted proceedings in error. The facts are stated in the opinion.

Charles W. Bramel, Judge. On motion to strike the bill of exceptions from the record. There is no case in this court expressly deciding- that the order overruling the motion for new trial, and the exception thereto, must appear in the bill. The office of the bill is to bring into the record the testimony and the papers which are not otherwise parts of the record.

Charles W. Bramel, Judge. James Keffer was convicted of murder in the first degree, and sentenced to suffer the death penalty. He prosecuted proceedings in error. The material ‘facts are stated in the opinion. The motion for continuance should have been granted; there was no finding of lack of diligence, and subpoenas had been issued in ample time, and the defendant was justified in relying on the promises of the witnesses to attend the trial.

Charles W. Bramel, Judge. - Proceeding in error from an order of the District Court striking from the files a motion to vacate a judgment rendered at a former term. The facts are stated in the opinion. The sole question here is whether a judgment can be attacked by a party in interest- upon jurisdictional grounds after term by motion supported by affidavits.

Reserved questions from the District Court, Laramie County, Hon. Richard H. Scott, Judge. (Abstracts of the briefs are omitted for the reason that they mainly discussed the points involved in the reserved question, which the court declined to consider.)

Richard H. Scott, Judge. Tom Horn was convicted of murder in the first degree and sentenced to death for the killing of one Willie Nickell. He prosecuted error. The facts are stated in the opinion. The only evidence rightly admitted, that tends in any way to establish the guilt of plaintiff in error of the crime charged, is the so-called confession.

ORIGINAL proceeding in mandamus. John W. Sammon claiming to have been elected to the office of District Judge for the Third Judicial District, sought, by mandamus, to require the State Board of Canvassers to canvass the votes cast for that office. An alternative writ of mandamus was issued, and the hearing was had upon demurrer to the petition. The facts are stated in the opinion.

<p>Appeae and Error — Dismissae—Briefs.</p> <p>1. The time for filing and serving briefs by plaintiff in error having been extended by order, a failure to file and serve briefs within the time allowed by such order is cause for dismissal.</p>

Charles W. Bramel, Judge. Action by Edgar B. Shaffner against the Board of County Commissioners of Natrona County to quiet title to certain land acquired by homestead entry under the public land laws of the-United States as against a tax lien. Judgment was rendered for plaintiff in the District Court, and the defendant prosecuted error. The material facts are fully stated in the opinion.

Charles W. Bramel, Judge. Action by Nyquist, Petersen & Co. against J. V. Honey-cutt and another to recover a money judgment. The plaintiff sued out an attachment at the commencement of the action, and recovered a judgment against defendant Honeycutt, who thereupon prosecuted error. The material facts are stated in the opinion. The attachment was secured on the ground of the non-residence of the defendant, and yet the summons was served at his usual place of residence.

Charles W. Bramel, Judge. Etherton P. Baker and Charles W. Brown, Jr., were contesting applicants for the lease of certain state lands. The State Board awarded the lease to Brown, and Baker appealed -to the District Court, where the decision of the board was affirmed. Baker prosecuted error. The facts are stated in the opinion. The original lease offered in evidence by the plaintiff in error should have been received.

Frank Caldwell, having been convicted of a felony and sentenced to imprisonment in the penitentiary, filed his petition in error for the review of the judgment April 28, 1902. On May 25, 1903, no briefs having been filed, and no extension of time, therefor allowed, the court of its own motion dismissed the cause for want of prosecution.

Charles W. Bramel, Judge. Dell Goodrich appealed to the District Court from a judgment rendered against him in favor of Anna Peterson by a Justice of the Peace. The District Court dismissed the appeal, on motion, for the failure of the justice to transmit a transcript of his docket entries and the papers in the case to the Clerk of the District Court within five days after notice of the appeal and the filing of the bond. The appellant prosecuted error.

Reserved questions from the District Court, Weston County, Hon.-Joseph L. Stotts, Judge. The case came up on reserved questions, and also on a motion filed by defendants for the dissolution of an injunction granted in the District Court. The facts are stated in the opinion. The briefs discussed the propositions involved in the questions attempted to be reserved, which the court declined to consider for want of jurisdiction.

Reserved questions from the District Court, Laramie County, HoN. Richard H. Scott, Judge. The material facts, and the questions reserved for the decision of the court, are stated in the opinion. Held: any extreme hardship or great injustice, the courts have deviated a little from the literal meaning of the words, and interpreted the instrument according to the apparent intent of its authors.1’ (6 Ency.

Reserved questions from the District Court, Sheridan County, HoN. Joseph L. Stotts, Judge. The facts are stated in the opinion. We submit that the entry on the House Journal is not a proper record of the fact of the signing of the bill by the presiding officer.

Habeas corpus. Ed Younger having been convicted of the crime of grand larceny at the October term of the District Court sitting in the County of Big Horn, and sentenced to imprisonment in the State Penitentiary for the term of three and one-half years, filed his petition for the writ of habeas corpus, alleging that by such impriso'nment he was unlawfully restrained of his liberty. The matter was heard upon the petition and return of the respondent to the writ.

Richard H. Scott, Judge. This was an action for an injunction brought by Alexander Rutherford, Sarah Ann Rutherford, Nettie Rutherford, Jennie Rutherford and Sarah Rutherford against The Lucerne ■ Canal and Power Company, a corporation, and D. A. Wucherer, as Water Commissioner, to restrain the use by defendants of any water from the North Platte River, by means of the Lucerne Canal, and the possession by defendant company of a certain right of way at alleged points of…

Joseph L. Stotts, Judge. Suit to redeem from a mortgage upon real estate held by a building and loan association, in which the defendant filed a cross-petition to foreclose the mortgage. The facts are stated in the opinion.

Joseph L. Stotts, Judge. Actions by Virga N. Ladd against William Redle and Rosa Redle. The material facts are stated in the opinion. It was the duty of plaintiff to use reasonable care to protect her land from further washing as a result of the acts of defendants, and she might construct embankments for that purpose. It was, therefore, error to exclude the testimony offered to show the necessary cost of such work. (Sweeney v. Ry.

David H. Craig, Judge. William M. Summers brought this action against the Mutual Life Insurance Company of New York. A demurrer was sustained to an amended petition, and the plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs. Plaintiff instituted proceedings in error. The facts are stated in the opinion. Parol contracts of insurance are valid. (Ellis v. Ins. Co., 50 N. Y., 402; Trustees, &c., v. Ins. Co., 19 N. Y., 305; Ins. Co. v. Ins.

Charles W. Beamel, Judge. The material facts are stated in the opinion. The petition will not support the judgment, as there can be no cause of action for the amount paid on the note for $450. The contract provides for refunding the money paid on the note for $550, if either note. The contract is ambiguous, and cannot be enforced. It is uncertain and unintelligible, and, therefore, void. (Bish. Contracts, Secs. 117, 316, 390; 2 Pars. Contracts, Sec. 561; 7 Ency.

On reserved questions from District Court, Uinta County, Hon. David H. Craig, Judge. The facts and questions are stated in the opinion. The sole question presented in this cause concerns the validity of the so-called Lord Campbell’s act of this State. It is conceded that there was a valid act in the statutes of the Territory of Wyoming, up to the time the territory became-a state.

Richard H. Scott, Judge. The facts are stated in the opinion. Owners of live stock, under the license of the government of the United States, have a right to let their live stock graze at will upon the public domain adapted to such use, not enclosed or otherwise withdrawn from such use by the government; and the enjoyment of such right will be protected by any proper remedy of the courts.

Richard H. Scott, Judge. Hiram A. Andrews sued George H. Haskins in an action for trespass alleged to have been committed by defendant’s cattle. Judgment was rendered for plaintiff, and defendant prosecuted proceedings in error. The material facts are stated in the opinion.

Richard H. Scott, Judge of the First Judicial District, presiding. Frank A.' Mau was proceeded against for contempt in interfering with a water distributer appointed in a proceeding pending in the District Court of Uinta County. Process for his arrest was issued by the District Court Commissioner, before whom he was brought and tried, and by whom he was adjudged guilty and sentenced to pay a fine of $25.

Richard H. Scott, Judge of First Judicial District, presiding. The facts are stated in the opinions. The proceedings taken by the judgment creditor in the District Court and permitted by that court show a radical misconception of the office and nature of receiverships.

The application was made upon the relation of the First National Bank of Laramie against the District Court of the Second Judicial District in and for Albany County and others, to restrain further proceeding's under the appointment of a receiver in a proceeding in aid of execution instituted by Morris E. Stowers, a judgment creditor, against Bird Bros., a partnership.

Richard H. Scott, Judge. The facts are stated in the opinion. To justify conviction in a criminal case the evidence of guilt should be clear and convincing, and of such a nature as to convince any unprejudiced person beyond a reasonable doubt that the defendant committed the crime in question.