Volume 13 — Idaho Reports

Appellant was tried in the district court of Bingham county, found guilty of forgery and sentenced to a term in the state penitentiary, and appealed from the judgment. The pleader in the information has attempted to lay two charges in the same count: First, forgery under the statute by writing a check; second, forgery under the statute by uttering a check. At the same time he charges that both were accomplished by writing.

'APPEAL from the District Court in and for Boise County. Hon. George H. Stewart, Judge. Prosecution by information on the charge of grand larceny. Defendants were convicted and sentenced to a term in the state penitentiary, and appealed from the judgment and an order denying their motion for a new trial. When the trial court permitted, over the objection of the defendants, the following question and answer: “ Q. What is your brand?

Hon. Ralph T. Morgan, Judge. Motion supported by affidavit to vacate and set aside a judgment. Motion denied from which an appeal is perfected.

<p>APPEAL from tbe District Court of Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.</p> <p>Defendant was convicted of the crime of grand larceny and sentenced to serve a term in the state penitentiary. He appealed from the judgmf-nt and an order denying his motion for a new trial.</p>

Hon. Alfred Budge, Judge. Action by a county to recover from the principal and surety on an official bond. Judgment for plaintiff. The surety’s obligations are strictly legal.

<p>APPEAL from the District Court of Third Judicial District for Boise County. Hon. Geo. H. Stewart, Judge.</p> <p>The defendants were convicted of grand larceny and sentenced to a term of four years in the penitentiary.</p> <p>We believe the true rule to be that where the new evidence would probably bring about a different result, so long as diligence in its search and the materiality of its nature are established, then a new trial should be granted.</p> <p>The real test of whether a new trial should be granted on newly discovered evidence is: “ Is this testimony probably true, and will it likely change the result?” (Spelling on New Trial, par. 226; Oberlander v. Fixen & Go., 129 Cal. 690, 62 Pac. 254; State v. Bond, 12 Idaho, 424, 86 Pac. 43.)</p> <p>The subject of cumulative evidence has many definitions, and among them we find, separate and distinct, evidence of witnesses and real evidence. (1 Elliott on Evidence, p. 13; also paragraphs 23, 24.)</p> <p>This distinction has been made, and manifestly in the case at bar the newly discovered evidence we presented is not the evidence of witnesses, but real evidence. Surely, this is not evidence of the same kind to the same point. Evidence of a different kind and character from that produced at the trial, though bearing on the same point, is corroborative, and if there be no other objection to it, warrants a new trial. (Spelling on New Trial, par. 228.)</p> <p>The objection made to the question propounded to the witness Jesse B. De Masters should have been sustained. This question related to a conversation between witness and one Jeffries, a witness for the state, in which the witness advised Jeffries not to testify or make any trouble for Cook. Clearly, this evidence of a conversation in which neither of the defendants were present, nor in which either party was shown to have been authorized to speak as agent for either of the defendants, was neither material, competent nor relevant. It was only asked to prejudice the jury and was entirely incompetent as legal evidence to fasten this crime upon the defendants. Men are not to be convicted and punished for larceny because they drive horses resembling those that have been stolen. That, in brief, is the case against defendants.</p> <p>“Conceding that there is circumstantial evidence against the defendant tending to establish his guilt, those circumstances can be and are as reasonably explained on other hypotheses than that of defendant’s guilt, or as perfectly consistent with defendant’s innocence, and for that reason a new trial should have been granted.” (State v. Seymour, 10 Idaho, 699, 79 Pac. 825; State v. Nesbit, 4 Idaho, 548, 43 Pac. 66.)</p> <p>The county should not be put to the expense of a new trial merely because'the defendants were inexcusably careless with regard to their own property. The law demands of the parties all reasonable diligence and caution in preparing for trial, and furnishes no relief for the hardships resulting from inexcusable negligence or want of diligence. (Howard v. Winters, 3 Nev. 542.)</p> <p>It is the evidence itself, and not merely its materiality, which must have been newly discovered. (People v. Sutton, 73 Cal. 243, 15 Pac. 86.) If discovered before or at the trial, and no continuance of the trial was applied for, an answer to the motion that no diligence is shown would be sufficient to defeat it, no matter what else is shown. (1 Spelling on New Trial and Appellate Practice, see. 207; Scanlan v. San Francisco & San Joaquin By. Co., 128 Cal. 586, 61 Pac. 271.)</p> <p>One must-show that evidence introduced on motion for-new trial as newly discovered was first learned of after the trial. (Curran v. Stange Storage Co., 98 "Wis. 598, 74 N. W. 377; Wimpy v. Gasliill, 79 Ga. 620, 7 S. E. 156; State v. Lamothe, 37 La. Ann. 43; Fagin v. State, 3 Tex. App. 400 ; Garner v. State, 34 Tex. Cr. Bep. 356, 30 S. W. 782.)</p> <p>Any question based upon the appearance of the colt now as furnishing any means of identification of the colt three years ago would be incompetent, irrelevant and immaterial. (2 Wigmore on Evidence, sec. 1154.)v .This is merely eumulative evidence on a point which was testified to on the first trial, namely, the identity of the colts. Cumulative evidence will not warrant a new trial. (State v. Davis, 6 Idaho, 159, 53 Pac. 678; State v. Williams, 12 Idaho, 483, 86 Pac. 53.)</p> <p>The granting of application for new trials on the ground of newly discovered evidence is largely within the discretion of the trial court. (People v. Woon Tuck Wo, 120 Cal. 294, 52 Pac. 833; Pengilly v. Threshing Machine Co., 11 N. Dak. 249, 91 N. W. 63; Longley v. Daly, 1 S. Dak. 257, 46 N. W. 247; People v. Clark, 130 Cal. 642, 63 Pae. 138.)</p>

Hon. Prank J. Smith, Judge. Judgment of district court rendered on appeal from an order of the board of county commissioners. The court had jurisdiction to review only the order oi orders of the board of commissioners specified in the notice of appeal. The protest of the county attorney was a matter outside the regular procedure before the board, and something the commissioners were not required to pass upon. Their rejection of it was a matter of no consequence.

Hon. Frank J. Smith, Judge. Defendant was indicted by a grand jury, tried and convicted for manslaughter; sentenced to seven years in the state prison. This appeal is from the judgment and order overruling a motion for a new trial. Since the passage of the county attorney act of 1897, the court can appoint another person to perform the duties of the county attorney only upon the happening of one of the conditions mentioned in section 2 of said act (page 74).

Hon. Lyttleton Price, Judge. Defendant was convicted of the crime of rape and appealed from the judgment. In order to properly safeguard appellant’s interests, and to furnish him with information which the law contemplates he shall have to assist him in his defense, the court should have complied with section 7826 of the Revised Statutes in regard to challenging jurors, and it was reversible error when this duty was neglected.

<p>APPEAL from the District Court of Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judget</p> <p>Action in claim and delivery; cross-complaint by defendants. Judgment for défendants.</p> <p>' The true test in determining whether or not the respondents “obtained a more favorable judgment” than was offered in the compromise is made by comparing the offer with the judgment, and if the “specific property” offered to be returned and the “specific property” ordered by the judgment returned is the same in specie and in number, then the offer was complete in law; for the return of the property is the paramount issue of the action; the alternate judgment, for the value and damages, being only incidental.</p> <p>The judgment rendered by the lower court in this case says nothing about the “value of said property” being in any sum, but simply reads that the defendants have judgment for the return of said one hundred and eighty-three head of sheep, “or in lieu thereof for the sum of $551, and damages for withholding the same in the sum of $62.01.” The money part of said judgment cannot be sustained upon any principle of law known to legal jurisprudence.</p> <p>The plaintiff would, as a matter of law, be the prevailing party, to the extent of having recovered the ownership and right of possession of the fifteen hundred and' twenty-five head of sheep in dispute, not found for the defendants, and being the “prevailing party,” would be entitled to recover his costs, though he did not recover all the property sued for. (Idaho Bev. Stats., sec. 4901; Saunders v. Frost, 5 Pick. 259, 16 Am. Dee. 402, 405, note; Havens v. Bale, 30 Cal. 547; Lawton v. Gordon, 37 Cal. 207; Williams v. Morrison, 32 Fed. 682-684.)</p> <p>The property having been delivered to the plaintiff at the commencement of the action, he was entitled to the judgment as “moved for” in his motion for judgment, confirming his right of possession — that is, that he recover of the defendants the possession thereof and damages, together with his costs. (Idaho Bev. Stats. 1887, sec. 4453; Claudius v. Aguirre, 89 Cal. 501, 26 Pac. 1077; Caruthers v. Hensley, 90 Cal. 559, 27 Pac. 411.)</p> <p>There was no need of a verdict or a judgment requiring the return of any of the sheep to the plaintiff. Such a verdict or judgment would be idle and useless. The plaintiff already had possession of all of the sheep. If the defendants were to secure any relief, it must be affirmative relief. The jury, therefore, awarded a return to the defendants of the sheep which they were entitled to, and which were in the possession of the plaintiff. These were properly described and the number given. The jury say: “Or in lieu thereof $551.” It is very clear that while they did not use the word ‘value,” the $551 was intended by them as the value of the sheep. In addition to that they award damages for wrongful detention.</p> <p>It is a general rule that a verdict will be sustained, even though it is not perfect, if the intention of the jury is clear, and certainly there can be no doubt as to what the jury intended in this case. (Cobbey on Replevin, sec. 1052 et seq.; Blackfoot Stock Co. v. Delamue, 3 Idaho, 291, 29 Pac. 97; Johnson v. Fraser, 2 Idaho, 408, 409, 18 Pac. 48.) But not only is the verdict sufficient, but appellant did not make any appropriate objection thereto at the proper time. For the reason that exception was not taken at the time the verdict was rendered and was not of a sufficiently definite character, appellant should not now be heard to criticise the verdict.</p> <p>If we construe the offer as describing the identical sheep described in the verdict, still the verdict awards us a value of $551 as against an offer of $460 — a difference of $91.00 in our favor. Besides this, we recovered $62.01 as damages, making a total of $153.01.</p> <p>The amount recovered was materially in excess of the offer. The slightest excess, however, would be sufficiently to carry costs. (Swails v. Cissna, 61 Iowa, 693, 17 N. W. 39.)</p>

Hon. Geo. H. Stewart, Judge. Respondents commenced an action to secure a writ of mandate to compel the board of dental examiners to register them and issue certificates to that effect, entitling them to practice dentistry within this state. From a judgment and order in favor of the applicants the board appealed.

Hon. Ralph. T. Morgan, Judge. Defendant was convicted of the crime of burglary and sentenced to a term of twelve years in the state penitentiary. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so before the jury is sworn.

of the Third Judicial District for Ada County. Hon. Frank J. Smith, Judge of the Seventh Judicial District, presiding. Action by plaintiff to collect balance on account. Judgment in favor of the plaintiff and defendant moved for a new trial. Motion denied and defendant appealed from the judgment and order denying his motion.

<p>. APPEAL from District Court of Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.</p> <p>Action to recover on promissory note. Judgment for defendant.</p>

<p>Action on Bail Bond — Change in Bond by Erasure and Interlineation — Consent op Sureties — Conflict in Evidence — Material Issues — Findings on — Mileage op Witnesses Residing Outside op State.</p> <p>1. Where material alterations have been made in a bail bond, and there is a substantial conflict in the evidence as to whether the sureties consented to such alterations and changes, the finding of the trial court upon that issue will not be reversed on appeal.</p> <p>2. Such alterations made by the authority or with the consent of the sureties must be accorded the same effect as if made by their own hands, and such alterations do not avoid the bond.</p> <p>3. Consent to alterations may be proved by parol evidence.</p> <p>4. Held, that the state sufficiently accounted for the appearance or alteration of said bail bond, and the court was warranted in admitting said bail bond in evidence, under the provisions of section 6030, Revised Statutes.</p> <p>5. Under the provisions of section 8108, Revised Statutes, which provides for the acknowledgment of the sureties on a bail bond before the court or magistrate, it was not intended to prohibit the justification of the sureties before a notary publie or other officer authorized to administer oaths. Under these provisions, the magistrate may refuse to approve a bond, and ought to do so if he has any doubt as to the authenticity of the acknowledgment or justication; but in case he approve the bond so acknowledged, the defendants cannot take advantage of that fact as a defense.</p> <p>6. Where the court fails to find on all of the material issues made by the pleadings, the judgment must be reversed, unless a finding upon such issues would not affect the judgment entered.</p> <p>7. The party in whose favor a judgment is rendered is entitled to have costs taxed for mileage of material witnesses actually and necessarily traveled within the state.</p> <p>(Syllabus by the court.)</p>

Hon. Frank J. Smith, Judge. Action in ejectment. Judgment for the defendant. Plaintiff moved for a new trial and the motion was granted. Defendant appealed from the judgment and order granting a new trial. The plaintiff was obliged to allege and prove in this action for ejectment three things to entitle him to the verdict and judgment: 1. The right of possession in plaintiff at the time the action was begun; 2. Prior possession in the plaintiff; 3.

<p>APPEAL from District Court of Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.</p> <p>Action to quiet title to one hundred and sixty acres of land. Judgment for the plaintiff confirming title in him.</p> <p>The tax sale certificate and the tax deed issued by the assessor and tax collector to Basye were void, for the reason that the property was assessed to J. C. Crawford and not to-the heirs of Joseph Crawford, deceased, or to the administrator of the decedent’s estate, as required by the laws of Idaho. (Rev. Stats., see. 1443; Cooley on Taxation, 3d ed., pp. 734, 913, 914, and cases cited; Carithers v. Weaver, 7 Kan. 110.)</p> <p>No additional or different right of title could be acquired by Basye, who had the place rented, or by the administrator, or any heir, or by any agreement between any of them, in permitting the taxes to become delinquent and the property sold for taxes and purchased by either of them. The tax deed to Basye and the quitclaim deed to E. J. Crawford by Basye, under their agreement, were wholly void, and operated only as a payment of the taxes. (Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. 712.) One standing in the relationship of co-owner will not be permitted to procure the title through a delinquent tax sale and thereby defeat the title of his co-owners.</p> <p>The heir, E. J. Crawford, entered into possession in 1895, as one of the co-owners of this land, and held it jointly for himself and all the other heirs of Joseph Crawford.</p> <p>The respondent, James Little, acquired whatever right he had through a quitclaim deed from E. J. Crawford, and therefore stands in the same position as his grantor; that is, he acquired one heir’s interest, and holds the possession for himself and all the other heirs.</p> <p>“A purchaser of real estate who takes a quitclaim deed from his grantor is presumed to have notice of any defects in his grantor’s title; and he purchases at his own risk.” (Leland v. Isenbeck, 1 Idaho, 469; City and County of San Francisco v. Lawton, 18 Cal. 465, 79 Am. Dec. 187; Carpenter v. Williamson, 25 Cal. 154; Graff v. Middleton, 43 Cal. 341; Cadiz v. Major, 33 Cal. 288.)</p> <p>One co-owner in possession cannot claim adversely to the other co-owners, and the statute of limitations will not run in favor of the one co-owner as against the other co-owners. The statute could not begin to run in favor of any claim respondent might have made, in any event, until he brought home to the other heirs a knowledge of the nature and extent of his adverse claim. (Ballard v. Golob (Colo.), 83 Pac. 376; McMahon v. McGraw, 26 Wis. 614; Holloway v. Clark, 27 111. 484; Gilman v. Biopelle, 18 Mich. 145; McGee v. Holmes, 63 Miss. 50; Poole v. Ellis, 64 Miss. 555, 1 South. 725; Krutz v. Fisher, 8 Kan. 90; Baker v. Whiting, Fed. Cas. No, 787, 3 Sum. 475; Millett v. Lagomarsino (Cal.), 36 Pac. 308; Richards v. Richards, 75 Mich. 408, 42 N. W. 954; 1 Eney. of Law, 794, and notes.)</p> <p>The entry of E. J. Crawford and wife under their deed from Basye was within itself, taken with the exclusive character of his occupancy, an effective ouster, and started running the statutes of limitation.</p> <p>A tenant in common will be presumed to have notice of the adverse holding of a cotenant where the hostile character of the possession is so openly manifested that a man of reasonable diligence would discover it. (‘Van Gunden v. Virginia, G. & 1. Go., 52 Fed. 838, 3 C. C. A. 294.)</p> <p>If one tenant in common has been in possession a great many years without any accounting to his fellow-commoners, this is proper evidence from which the jury may infer an adverse possession. (Freeman on Cotenancy, 242; Bryan v. Atwater, 5 Day, 181, 5 Am. Dee. 136; Bobidoux v. Cassilege, 10 Mo. App. 516; Warfield v. Lindell, 38 Mo. 561, 90 Am. Dee. 443.)</p> <p>The entry of plaintiff under his purchase was effective as an ouster of defendants, started the statutes to running on the initiation of his title, and having been maintained for the prescriptive period, and the other requisites of an adverse possession having been by him complied with, ripened his claim into a title absolute. (Packard v. Moss, 68 Cal. 123, 8 Pac. 819; Sped v. Hagar, 65 Gal. 443, 4 Pac. 420; Frick v. Sinon, 75 Cal. 337, 17 Pac. 439; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Armijo v. Neher, 11 N. Mex. 645, 72 Pac. 12; Winterburn v. Chambers, 91 Cal. 170, 27 Pac. 658; Tiedeman on Real Property, 251.)</p> <p>Where a tenant in common is in exclusive possession, and conveys to another by deed purporting to convey the whole estate, and puts the grantee in possession, it is such a disseisin as will set the statutes of- limitation to running in grantee’s favor. (Bath v. Valdez, 70 Cal. 350, 11 Pac. 727; Frick v. Sinon, 75 Cal. 337, 17 Pac. 439 ; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100.)</p> <p>Possession under color of title for the period of statutory limitation confers upon the holder a perfect title in law. (1 "Warvelle on Vendors, 50.)</p> <p>A quitclaim deed is as effectual to pass title as a grant or bargain and sale. Such a deed, therefore, gives color of right. (Packard v. Johnson (Cal.), 4 Pac. 636.)</p> <p>A void tax deed is sufficient color of title to sustain the bar of the statute of limitation. (Winterburn v. Chambers, 91 Cal. 170, 27 Pac. 658; Ward v. Huggins, 7 Wash. 617, 32 Pac. 740, 1015, 36 Pac. 285.)</p> <p>However incompetent may have been the power of the grantor in a conveyance to pass title to the subject thereof, yet a claim asserted under the provisions of such a deed is strictly a claim under color of title, and one which will draw to the possession of the grantee the protection of the statutes of limitation, other requisites being complied with. ('Wright v. Madison, 18 How. (U. S.) 50, 15 L. ed. 280; Hall v. Law, 102 U. S. 461, 26 L. ed. 617; Swift v. Mulkey, 17 Or. 532, 21 Pae. 871; Weber v. Clarke, 75 Cal. 11, 15 Pae. 432.)</p> <p>As to the defendants, the doctrine of estoppel lies. One cannot stand by idly and silent, permit another to expend money, time and effort in the acquisition and betterment of lands, participate in the profits, and proceeds of transaction, and then be heard to say that grantor had not all the title. (2 Pomeroy Eq. Jur., 1905 ed., 807.)</p>

Hon. Frank J. Smith, Judge. Action to foreclose a mortgage. Defense, incapacity of mortgagor to execute the contract. Judgment for respondent. The real test of respondent’s competency was, Did he understand the nature and effect of the deed, and of the note and mortgage that he gave at the time they were made? If so, he was competent to make them, and they are valid and binding on him and on his estate, unless it is shown that fraud was practiced.

<p>APPEAL from the District Court of Seveuth Judicial District for Canyon County. Hon. Frank J. Smith, Judge.</p> <p>Action to recover on promissory note. Payment pleaded as a defense. Judgment in favor of plaintiff.</p> <p>Each item and claim that the defendánt had against the plaintiff was an offset at the date of its creation of so much principal and interest then due on the various notes.</p> <p>A statement of the claim and the demand for credit has never been necessary to recover. No demand is necessary before bringing an action for the recovery of the price of articles sold and delivered, where the contract itself does not impose that condition. Such a debt is due when the transaction is complete. (1 Cye., par'. C, p. 475, citing Byors v. Prior, 31 Mo. App. 555; Ballew v. Casey, 60 Tex. 573; Loto v. Griflin (Tex. Civ. App.), 41 S. W. 73; Foster v. Newbrough, 66 Barb. (N. V.) 645.)</p>

Hon. Frank J. Smith, Judge. Action by Richard Cunningham, as trustee, to recover certain funds deposited in the bank and belonging to his clients. Defendants demurred to the complaint and the demurrer was sustained. Judgment was entered in favor of the defendants. Plaintiff; appeals from the judgment. There is one fact which controls this case: Whose money is this? If it is Cunningham’s, the creditors can reach it; if not, they cannot. (First Nat.

Hon. George H. Stewart, Judge. Action to recover $890 damages for failure to procure title to real estate. Judgment for the plaintiff for $100, from which this appeal was taken by the plaintiff. The point at issue is whether the instrument set out in the bill of exceptions is a receipt and contract or a mere receipt.

<p>Village Government — Construction op Statute.</p> <p>1. "Where a statute provides that: "Whenever any village containing more than one thousand inhabitants desires to discontinue its organization as a village, .and organize as a city of the second class, and' a number of the qualified electors of said village equal to three-fifths of the total vote as shown by the last preceding general village election, held in said village, shall petition the board of trustees of such village therefor, .... it shall be the duty of said board of village trustees, etc.,” and a petition for change of government is filed prior to the holding of any election within the village as designated by the act, it will be a sufficient compliance with the law for the petitioners to show that, as a matter of fact, their petition is signed by a number of qualified electors of the village equal in number to three-fifths of all the electors of the municipality at the time of filing and presenting the petition.</p> <p>2. The statute in such ease is held to be directory only, and where the method designated for ascertaining the number of electors is impossible of application, then the real and vital fact to be ascertained will be discovered by the usual modes of proof.</p> <p>3. Further, held, that the vital and essential fact required by the statute in this case is that the village should contain “more than one thousand inhabitants,” and that not less than "three-fifths” of the "electors” of the village shall petition for the change of municipal government.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Lyttleton Price, Judge.</p> <p>Action to recover damages for the killing and injuring of livestock by a railway train. Judgment for plaintiff. Defendant appealed.</p> <p>Where the only proof to establish negligence of the defendant in killing stock is the fact that the place where stock was run over and killed by a moving freight train was at a point on the track where persons in charge and operating said train could have seen the cow in time to have stopped the train, in the absence of all showing as to when the cow went upon the track, there is not sufficient evidence to establish negligence upon the part of the defendant to entitle the plaintiff to recover. (Kansas City L. & 8. K. By. Co. v. Bolson., 36 Kan. 534, 14 Pae. 5; Jensen v. Northern Pae. By Co., 8 Idaho, 599, 70 Pac. 790; Jones v. Oregon etc. B. B. Co., 6 Idaho, 441, 56 Pac. 76.)</p> <p>The mere fact that the cattle were on the track would not impose upon an engineer the absolute duty of stopping his train. (Yazoo c& M. V. B. B. Co. v. Wright, 78 Miss. 125, 28 South. 806; Western By. Co. v. Lazarus, 88 Ala. 453, 6 South. 877; Peoria etc. By. Co. v. Champ, 75 111. 577; 8t. Louis etc. By. Co. v. Bussell, 39 111. App. 443; Louisville etc. By. Co. v. Bowen (Ky.), 39 S. W. 31; Yazoo By. Co. v. Whittington, 74 Miss. 410, 21 South. 249.)</p> <p>Testimony merely as to the value of the animals killed and injured is too. indefinite on which to base judgment. (Carman v. Mont. 'Cent. B. Co., 32 Mont. 137, 79 Pae. 690.)</p> <p>Testimony merely as to value, from a witness not shown to be competent to testify on that point, does not give the jury any facts upon which they may test the credibility of the witness, and such testimony is incompetent. (Lee v. Callahan, 84 N. Y. Supp. 167.)</p> <p>The witness is to testify only to facts. He is to speak as to the facts which he has heard or seen. His opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict and decides the case. (Sedgwick on Damages, 8th ed., sec. 290.)</p> <p>In an action for injuries to plaintiff’s cattle he was not entitled to testify that his damage to the cattle amounted to the gross sum of $400. The determination of the gross ■ damage, apart from the elements thereof, being for the jury. (Pacific Livestock Co. v. Murray, 45 Or. 103, 76 Pac. 1079; Burton v. Severance, 22 Or. 91, 29 Pac. 200; Berg v. Imp. Co., 38 Wash. 342, 80 Pac. 528; De Wald v. Ingle, 31 Wash. 616, 96 Am. St. Eep. 927, 72 Pae. 469; Hoskins v. Huling, 2 Will. Civ. Cas. (Tex.) 162.)</p> <p>The remarks volunteered by the court constitute such error as warrants a reversal of this case, if no other .error appeared in the record.</p> <p>A‘party has a right to have his requests for instructions submitted to the jury if relevant and correct, unless they are fully covered by the general charge. (Braucht v. Graves-May Co. (Neb.), 89 N. W. 417.) It is error to refuse an instruction warranted by the law and the evidence, not covered by other instructions in the case. (Marsh v. Cramer, 16 Colo. 331, 27 Pae. 169.)</p> <p>In view of the contradictory statements of the engineer the jury were amply justified in disbelieving his testimony.</p> <p>“When a given state of facts is such that reasonable men may fairly- differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.” (Grand Trunk By.^Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Eep. 679; Gulf C. cfi S. F. By. Co. v. Filis, 54 Fed. 481, 4 C. C. A. 454.)</p> <p>When a train runs down stock which the engineer saw and should have avoided, the railroad company is liable. (Buster v. Hannibal & St. J. By. Go., 18 Mo. App. 578; St. Louis & S. F. By. v. Carlyle, 75 Ark. 560, 88 S. W. 584; Wilson v. Norfolk & S. B. Co., 90 N. C. 69; Chicago etc. By. Co. v. Barrie, 55 111. 226; Shuman v. Indianapolis etc. By. Co., 11 111. App. 472; Missouri Pac. By. Co. v. Beynolds, 31 Kan. 132, 1 Pac. 150; Woodland v. Union Pac. By. Co. (Utah), 26 Pac. 298; Johnson v. Bio Grande W. By. Co., 7 Utah, 346, 26 Pac. 926; Union Pac. D. & B. G. By. v. Patterson, 4 Colo. App. 575, 36 Pac. 913; Denver & B. G. B. Co. v. Nye, 9 Colo. App. 94, 47 Pae. 654.)</p> <p>An examination of the record will show that counsel saved no exception to objectionable remarks of the court, and furthermore his principal witness testified to the same thing.</p>

<p>APPEAL from the District Court of the Sixth Judicial District for Custer County.</p> <p>Motion for a new trial heard before Hon. Geo. H. Stewart. Judge of the Third Judicial District at Boise, Ada County.</p> <p>Action to determine the priorities to the use of the waters of Warm Springs creek, Custer county. Judgment and decree determining the several rights of the parties. Plaintiff moved for a new trial and the motion was granted and defendant appealed from the order.</p> <p>The statement on motion for new trial was not filed with the clerk of the court as required by law. The statement was settled on October 7, 1902, and again on December 31, 1902, and was not filed with the clerk until May, 1903.</p> <p>“When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk.” (Rev. Stats. 4441, subd. 3.) “Then” does not mean four months afterward. Webster defines “then” as follows: At that time, referring to a time specified, either past or present. Soon afterward; immediately.</p> <p>If it can be lost for four months and still be efficient as a valid statement without being identified as the original, then why not for a year or four years ?</p> <p>It does not contain that which the certificate of the judge says it contained at the time he made the settlement. The certificate was not attached to this particular statement for several months after the certificate was made. No one gives any account of its whereabouts during said months; the attorneys then having it in charge are dead, and it is not a complete and full statement of the evidence. (Stickney v. Eanralian, 7 Idaho, 424, 428, 63 Pac. 189.)</p> <p>On application for a new trial it must appear that substantial justice has not been attained, that the applicant is entitled to. succeed, and that a new trial will probably change the result. (14 Eney. of PI. & Pr. 774, 934.)</p> <p>It cannot be seriously contended that the appellant is not entitled, under the evidence, to the forty-five inches of water decreed him.</p> <p>The general rule that an order granting a new trial will not be reversed on appeal unless there has been a manifest abuse of discretion, is invoked only in behalf of the judge who sat at the trial of the case on its merits. But the judge who granted this motion for a new trial was not present at the trial of the case, and knows nothing of the character or conduct of the witnesses.</p> <p>His decision must stand or fall upon its merit without being tempered by the “abuse of discretion” rule. (Roby v. Roby, 10 Idaho, 139, 77 Pac. 213; Eoughley v. Wabasha, 69 Minn. 245, 72 N. W. 78; Minneapolis First Nat Bank v. St. Cloud, 73 Minn. 219, 75 N. W. 1054.)</p> <p>The record- as shown by the certificate of the judge shows that statement was settled without objection.</p> <p>The statute does not give a definite number of days for filing the statement. In Reay v. Butler, 69 Cal. 572, 11 Pac. 463, the supreme court in discussing the question says: “It is said that the bill was not filed until more than six months after it was allowed by the judge; we do not consider this a reason why it should be disregarded.....The delay in filing after settlement does not authorize this court to disregard it.”</p> <p>On December 31, 1902, the learned judge certifies that the statement contains all the evidence, which certificate he makes as the judge of the court; which certificate is acquiesced in by all the counsel for all the parties for a period of about three years, and to-day, as counsel for the defendants, he certifies that it does not contain the evidence. Which certificate should be taken?</p> <p>Defendant Treloar testifies it would take forty-five inches of water to irrigate his farm after plaintiff spaded out the stream, for which he gets judgment; he then gets this injunction giving him back the stream as it was. Whatever he gets by seepage, percolation and overflow is what he got in the early days undisputed, and this only.</p>

George H. Stewart, Judge of the Third Judicial District. Action to determine the rights and priorities of the respective parties to the waters of Warm Springs creek, Custer county. Judgment and decree determining the respective rights, and plaintiffs moved for a new trial. Motion granted and the defendant appealed. Counsel cite no authorities on points decided not cited in their briefs in Van Gamp v. Emery.

<p>Construction op Contract — Surrounding Pacts and Circumstances— Measure op Damages — Prospective Peopits.</p> <p>1. Where H. and the P.-K. Con. Co. entered into a contract, whereby H. was to furnish all the hardware and put in place more than two miHions of feet of lumber in the construction of flumes, trestles, etc., and the company was to furnish all the lumber at the times and places where demanded by H., and it fails to do so, and suit is brought to recover prospective profits, the court in construing such contract should admit in evidence the facts and circumstances surrounding the making of the contract and the reasons for the failure of the company to furnish the lumber in accordance with its terms.</p> <p>2. If the failure to perform on the part of the company was because of its intention to force or compel H. to terminate the contract, the measure of damages would include the prospective profits had the contract been completed; but if the company was endeavoring, in good faith, to comply with its part of the contract, but was prevented in doing so from no fault of its own, H. could not terminate the contract and recover prospective profits, but he might terminate it, and his measure of damages would be the value of his work already performed, and whatever damages he had sustained by reason of the delays occasioned by the company, and the loss occasioned, if any, on account of having procured the necessary outfit and appliances for carrying out the contract, should bo divided between the parties in the proportion that the work already done bears to that yet to be done.</p> <p>3. In cases where prospective profits may be recovered, the rule for arriving at the prospective profits is to ascertain the difference between the cost of doing the work and what the claimant was to receive for it, making therefrom a reasonable deduction for the less time engaged and for the release from the care, trouble, risk, and responsibility attending a full execution of the contract.</p> <p>(Syllabus by the court.)</p>

Hon. Lyttleton Price, Judge. Action to determine the boundaries and quiet the title to certain real estate. Demurrer to complaint sustained, judgment of dismissal entered. Where a person sells or purchases according to the boundaries specificially pointed out, marked on the ground, he is estopped subsequently to claim other boundaries to the injury of others.

<p>¡Village Treasurer — Power oe Village Trustees to Bemove Treasurer — Grounds oe Bemoval must Appear — Bight oe Notice and Hearing.</p> <p>1. Under the provisions of section 64 of an act approved February, 10, 1899 (Sess. Laws' 1899, p. 201), entitled "An act to provide for the organization, government and powers of cities and villages, ’ ’ providing that if the village treasurer ‘ ‘ neglect or fail for the space of ten days from the end of each and every month to render the said account, the office shall be declared vacant, and the city council or board of trustees shall fill the vacancy by appointment until the next election for city or village officers," the board of village trustees must first find the fact to exist that the treasurer has failed or neglected to make reports as required by law before they can declare the office vacant.</p> <p>2. While the statute provides that the office of village treasurer "shall be declared vacant" on the happening of certain contingencies, the board of village trustees must first find that the facts actually exist upon which the vacancy may be declared before any vacancy can exist or be filled by appointment; the statute is not mandatory and self-executing to the extent that .it can determine and. declare the existence of the fact upon which the law operates.</p> <p>3. Where a board of village trustees is authorized to declare an office vacant and appoint a successor on failure or neglect of tho incumbent to discharge certain duties, it is necessary for the board to find and determine that the officer has failed to discharge the duties for a failure to discharge which the vacancy may be declared, before they have jurisdiction or authority to proceed to the appointment of a successor in office.</p> <p>4. Where a statute provides that an officer may be removed for certain specified causes, the order of removal must be based and founded upon some one or all of such causes, and cannot be made for other causes.</p> <p>5. Where the board of trustees of a village have made an order removing an officer and specified no grounds for the removal, and have thereafter applied to the court for a writ of mandate to compel the officer so removed to turn over the books, papers and moneys in her hands belonging to the municipality to her successor in office, and have alleged that her removal was made upon the grounds that she had failed to make monthly reports as required by law, they will not be heard upon appeal to the supreme court to urge as a ground for the issuance of the writ that the officer was not qualified under the constitution to hold such office on account of her sex.</p> <p>(Syllabus by the court.)</p>

<p>Writ of Mandate — Proper Party — State—Prosecuting Attorney— Allegations of Complaint — No Speedy and Adequate Remedy— District Judge — Jurisdiction—Piling Information — Duty of Clerk — Indictments—Piling of.</p> <p>1. In an original proceeding in this court for writ of mandate to compel the clerk of the district court to file an information presented by the prosecuting attorney, the state is the party interested, and the prosecuting attorney represents the state, and may verify the complaint or petition.</p> <p>2. Held, that the complaint states facts sufficient to warrant the issuance of the writ.</p> <p>3. The plaintiff had no speedy and adequate remedy at law in this matter.</p> <p>4. Held, that the district judge acted without any jurisdiction whatever when he directed the clerk not to file the information referred to.</p> <p>5. Under the provisions of our statute, it is made the duty of the clerk of the court to file an information when presented by tho prosecuting attorney, and the district judge has no jurisdiction over the clerk in that matter.</p> <p>6. Under the provisions of section 7669, Revised Statutes, when an indictment is found by the grand jury, it must be presented by the foreman to the court in the presence of the grand jury and must be filed by the clerk. The court has’ no authority to prohibit the clerk from filing such indictment when so presented, as the court has no jurisdiction to determine against whom informations may be filed.</p> <p>(Syllabus by the court.)</p>

lion. Edgar C. Steele, Judge. Action to recover damages for the alleged conversion of certain timber products. Judgment for the defendant. Blake is estopped to claim that he believed Scott was the owner of the property, because he represented the lien claimants against the corporation. In order to establish an estoppel it must be proven that the representations were false and that the party did not know of their falsity.

Hon. Ralph T. Morgan, Judge. Action to recover road poll tax from an employer of the persons owing the tax. Judgment for the defendant. The statute providing for seizure and sale of personal property by the road overseer in ease of nonpayment of the road poll tax is an accumulative remedy, and not an exclusive remedy.

Hon. Ralph T. Morgan, Judge. Action to quiet title to mining claim and for injunction pendente lite. The trial court refused to grant an injunction pendente lite. It has been the practice in the mining states to be liberal in the granting of injunctive relief in mining litigation, in order that one party might not be placed in worse position during the litigation.

<p>Motion for Continuance — Absence of Witness — Evidence Expected from Witness — New Trial — Refusal to Introduce ¡Further Evidence.</p> <p>1. When on motion for continuance due diligence is shown on the part of the moving party, and that the absence of the witness is the result of unavoidable accident, but it appears that the principal testimony expected from the witness would be in conflict with the testimony of the witness as given on a previous trial of the same case, it is not an abuse of discretion to deny a continuance.</p> <p>2. Where a case has been reversed and remanded with directions that a new trial be granted, “or if either party does not care to introduce new testimony, the court may make findings of fact and conclusions of law and enter judgment in accordance with the views herein expressed,” and when the case is called for trial the plaintiff elects to submit his ease on the evidence introduced by him on the previous trial, and defendant thereupon moves for a nonsuit and declines to introduce any evidence, and the court</p> <p>.makes findings on the evidence taken at the former trial and enters judgment accordingly, such judgment will not be disturbed on appeal, upon the contention by appellant that no evidence was introduced and no new trial was had.</p> <p>(Syllabus by the court.)</p>

Hon. Ralph T. Morgan, Judge. Action to foreclose a mechanic’s lien. Judgment of dismissal. Motion to set aside judgment overruled. No order or judgment was ever entered from which we could have appealed until the order of October 31, 1905, was signed and entered.

Hon. Ralph T. Morgan, Judge. Action to foreclose a mortgage on real estate. Motion to have A. B. Campbell brought in as plaintiff denied by the court and judgment entered foreclosing the mortgage. Every action must be prosecuted in the name of the real party in interest. (Idaho Rev. Stats., sec. 4090.) The property was acquired by purchase by Mr. Campbell after the marriage, and was community property.

Hon. Edgar C. Steele, Judge. From a judgment made and entered by the district court adjudging certain personal property to be the subject of taxation under the revenue laws of this state, the plaintiff appealed.

<p>APPEAL from tlie District. Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Defendant was informed against by the prosecuting attorney, charged with the crime of murder in the first degree, committed by the administration of poison. Defendant was convicted of the crime of manslaughter and appealed from the judgment and an order denying his motion for a new trial.</p> <p>Section 6562, Revised Statutes, dividing the crime of murder into two degrees, has been repeatedly construed by the supreme court of California.</p> <p>“Where the case comes within either of these classes, the test question, ‘Is the killing willful, deliberate and premeditated?’ is answered by the statute itself, and the jury have ■no option but to find the prisoner guilty of the first degree.” {People v. Nichol, 34 Cal. 211; People v. Mooney, 2 Idaho, 24, 2 Pae. 876; People v. Sanchez, 24 Cal. 17, 29.)</p> <p>The information by its allegations expressly charges murder by the administration of poison to the deceased. The statute declares in express terms that such a homicide is murder in the first degree. The entire evidence in the case shows that the crime was either murder in the first degree, or that no crime was committed.</p> <p>It is error to instruct the jury as to murder in the second degree, when, under the facts 'shown by the evidence, if defendant committed the homicide at all, he is guilty of murder in the first degree, and no other grade of homicide. {Dresback v. State, 38 Ohio St. 365; Pliemling v. State, 46 Wis. 516, 523, 1 N. W. 278; State v. Alexander, 66 Mo. 148; State v. Talbott, 73 Mo. 347; State v. Kilgore, 70 Mo. 547; State v. Stoeckli, 71 Mo. 559; State v. Evans, 1 Marv. (Del.) 477, 41 Atl. 136; State v. Bose, 129 N. C. 575, 40 S. E. 83; State v. Greenleaf, 71 N. H. 606, 54 Atl. 38, 44; State v. Bertoch, 112 Iowa, 195, 83 N. W. 967; State v. Burns, 124 Iowa, 207, 99 N. W. 721; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, .12 N. W. 665; Washington v. State, 36 Ga. 222; Thornton v. Commonwealth, 24 Gratt. (Va.) 657; Washington v. State, 1 Tex. App. 647; Shaffner v. Commonwealth, 72 Pa. St. 60, 13 Am. Rep. 649; People v. Byrnes, 30 Cal. 206.)</p> <p>Defendants, tried for murder in the first degree, are prejudiced by instructions to the jury inducing them to convict for murder in the second degree, and are entitled to a new trial, where the case is not one for instructions on the law concerning murder in the second degree. {State v. Mahly, 68 Mo/ 315; State v. Talbott, 73 Mo. 347; Dresback v. State, 38 Ohio St. 365; Shaffner v. Commonwealth, 72 Pa. St. 60, 13 Am. Rep. 649.)</p> <p>The same is true relative to the giving of an instruction as to manslaughter. {Dresback v. State, 38 Ohio St. 365; State v. Wagner, 78 Mo. 644, 47 Am. Rep. 133; State v. Kilgore, 70 Mo. 547; State v. Alexander, 66 Mo. 148; Pliemling v. State, 46 Wis. 516-523, 1 N. W. 278.)</p> <p>No harm has been done to appellant, since the verdict of the jury was for a lower grade of offense than murder in the second degree. (State v. Alcorn, 7 Idaho, 612, 97 Am. St. Rep. 252, 64 Pac. 1014.)</p> <p>On an indictment for murder no injury is done defendant by an instruction to the jury as to the crime of murder, which instruction may be erroneous, if, on the trial, the jury find, a verdict of manslaughter. (People v. Swift, 66 Cal. 348, 5 Pac. 505; People v. Gordon, 88 Cal. 422, 26 Pac. 502; People v: O’Neill, 67 Cal. 378, 7 Pac. 790; People v. Boling, 83 Cal. 380, 23 Pac. 421; Foskey v. State, 119 Ga. 72, 45 S. E. 967; State v. Biddle, 179 Mo. 287, 78 S. W. 606; Downing v. State, 11 Wyo. 86, 70 Pac. 833, 73 Pac. 758.)</p> <p>In all cases of homicide the jury may properly return a verdict of murder in the second degree or of manslaughter. (State v. Schieler, 4 Idaho, 120, 37 Pac. 272; State v. Hardy, 4 Idaho, 478, 42 Pae. 507; People v. Dunn, 1 Idaho, 77; .People v. Walter, 1 Idaho,.386; People v. lams, 57 Cal. 115; State v. Lindsay, 19 Nev. 47, 3 Am. St. Rep. 776, 5 Pac. 822; State v. Dowd, 19 Conn. 388; 2 Wharton' on Criminal Law, 6th ed., 1112; State v. Underwood, 35 Wash. 558, 77 Pac. 865; State v. Howard, 33 Wash. 250, 74 Pac. 382; State v. Greer, 11 Wash. 244, 39 Pac. 874; In re Alcorn, 7 Idaho, 301, 60 Pac. 561; People v. Muhlner, 115 Cal. 303, 47 Pac. 128; State v. Ellington, 4 Idaho, 529, 43 P.ae. 62.)</p> <p>The supreme court of Idaho has uniformly followed the literal meaning of section 7926 of the Revised Statutes of 1887: “The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.”</p> <p>From the evidence in the case at bar the crime of manslaughter is fairly deducible. ' For the jury is entitled to construe all or any of the evidence in the case as most favorable to the defendant. (United States v. Ming.0, 2 Curt.' C. C. 1. Fed. Cas. No. 15,781; Bead v. Commonwealth, 22 Gratt. (Ya.) 924; Wharton on Homicide, 2d ed., 644-669.)</p>

<p>APPEAL from the District Court of Fourth Judicial District for Blaine county. Hon. Lyttleton Price, Judge.</p> <p>Defendants were prosecuted on the charge of rape and convicted and sentenced to serve each a term in the state penitentiary. From the judgment and an order denying their motion for new trial, defendants appealed.</p> <p>In a criminal prosecution the venue must be proved as laid. (22 Ency. of PI. & Pr. 820.)</p> <p>■ When a bill of exceptions purports to set out all the evidence adduced, and shows no proof of the venue, a judgment of conviction will be reversed. (Gowthorn v. State, 63 Ala. 157; Harrison v. State, 3 Tex. App. 558; Jack v. State, 3 Tex. App. 72.)</p> <p>Positive testimony is necessary to prove venue. (Speight v. State, 80 Ga. 512, 5 S. E. 506; Franklin'v. State, 64 Tenn. 613.)</p> <p>It is well established that the prosecution may show that the prosecutrix made complaint of the offense, but the details or particulars of the complaint, stated by her to others, are inadmissible. (Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387; State v. Robertson, 38 La. Ann. 618, 58 Am. Rep. 201; People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 Pac. 691; People v. Lambert, 120 Cal. 170, 52 Pac. 307; State v. Daugherty, 63 Kan. 473, 65 Pac. 695 ;• 3 Greenleaf on Evidence, see. 213; Stevens v. People, 158 111. Ill, 41 N. E. 856.)</p> <p>The record does not contain a word going to show that the acts in question were admitted. Such an instruction is clearly erroneous' and prejudicial to the defendants. The burden of proof and the obligation to convince the jury beyond a reasonable doubt of the prisoner’s guilt is, in criminal trials, upon the state from the beginning to the end of the trial. (Underhill on Evidence, see. 249; Underhill on Criminal Evidence, see. 24.)</p> <p>It is material error to place the burden of proof on the wrong party, since it is calculated to mislead the jury. (1 Blashfield’s Instructions to Juries, sec. 347, and cases there cited.)</p>

<p>Injunction Pendente Lite — Application for — On Affidavit of Attorney — Pacts Stated on Information and Belief — Source of Information.</p> <p>1. Held, that the facts stated in the affidavit for an injunction in this case are insufficient to warrant the granting of a writ pendente lite.</p> <p>2. If the affidavit for an injunction is made by the attorney, good and sufficient reasons should be set forth in the affidavit why he makes it; or it must be shown that he has personal knowledge of the facts set forth therein.</p> <p>3. If made on information and belief, the affidavit should show why the person who personally knows the facts does not make the affidavit.</p> <p>4. Under the provisions of section 4291, Bevised Statutes, the court or judge granting an injunction must require a written undertaking as provided by said section. That provision of said section is mandatory and the writ issued was without force or effect.</p> <p>(Syllabus by the court.)</p>

<p>Mortgage — Purchaser Assuming Payment of — Renewal of — Second Mortgage Given Subject to — Intention of the Parties.</p> <p>1. When one purchases land and it is recited'in the deed that the land conveyed is subject to a certain mortgage then existing against said land, the land is charged with the encumbrance of said mortgage debt.</p> <p>2. Under the facts of this case, where the purchasers thereafter mortgaged said premises to a third party and it is recited in such mortgage that it is subject to the debt secured by the first mortgage, and the purchasers thereafter make a settlement of the first mortgage and execute another mortgage as a renewal of that mortgage to secure the remaining part of such debt, such mortgage lien is prior and superior to the mortgage given by the purchasers to such third party, if that be the intention of the parties thereto.</p> <p>(Syllabus by the court.)</p>

Hon. Edgar C. Steele, Judge. Action by the plaintiff to secure an injunction against the defendants proceeding with the construction of a sewer system and incurring the expenses necessary therefor. Judgment for the defendant, and plaintiff appealed.

Hon. Ralph T. Morgan, Judge. Action to procure an injunction restraining, the construction of a sewer system within local sewer improvement district No. 1 of the village of Coeur d’Alene, and to restrain the issuance of warrants and bonds for the payment of the assessments levied therefor. Judgment for the defendants and plaintiff appealed.

Hon. Edgar C. Steele, Judge. Action by the plaintiff to recover the sum of $660 from the defendant on account of a consignment to him of that sum of money. Judgment for the plaintiff and defendant appeals.

Hon. Ralph T. Morgan, Judge. Action to recover damages for personal injury. Judgment for plaintiff. It is reversible error, in an action for personal injuries, for counsel to give tbe jury to understand that an insurance company is defending tbe case. (Iverson v. McDonnell, 36 Wash. 73-75, 78 Pac. 202; Manigold v. Blach River Traction Go., 81 App. Div. 381, 80 N. Y. Supp. 861; Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494; Fuller Go. v. Darragh, 101 Ill.

<p>APPEAL from tbe District Court of Sixth Judicial District for Fremont County. Hon. James M. Stephens, Judge.</p> <p>Action against the state game warden to recover $7,500 damages because of his having turned loose an alleged 750,000 fish from alleged private ponds. A general demurrer to the complaint was sustained and a judgment of dismissal entered.</p> <p>The right to construct fish ponds within the state of Idaho, even at the present time, to say nothing of the time prior to the passage of the fish and game law of 1905, is not a statutory privilege. It is a common-law right, and the fish and game laws of Idaho are mere regulations of a right which existed prior to and independent of the passage of any such laws. (19 Cyc. 988, 999.)</p> <p>If the rule sought to be invoked by respondents was carried to its logical conclusion, the presumption would be that any man constructing or maintaining a fish pond is prima facie guilty of a misdemeanor. In other words, he would have to negative the fact, and state in his complaint that he was not violating any of the game laws of the state of Idaho before he could maintain a civil suit.</p> <p>"We take it that the game and fish laws of the state of Idaho apply only to public streams or waters and public lands within the state, and do not, as a matter of fact, apply to private rights to land and waters. (People v: Conrad, 125 Mich. 1, 83 N. W. 1012.)</p> <p>The legislature seems to have recognized that the right to construct the ponds existed before the passage of the act, and only limited their construction so as not to contain any land or waters where wild game or food fishes naturally abound.</p> <p>The wild game and fish within a state is not the subject of private ownership, except in so far as the people may elect to make it so, and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation of the public good. {Geer v. State, 161 U. S. 519, 40 L. ed. 793, 16 Sup. Ct. Rep. 600; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; State v. Snowman, 94 Me. 99, 80 Am. St. Rep. 380, 46 Atl. 815, 50 L. R. A. 544; Stevens v. State, 89 Md. 669, 43 Atl. 929; Eornhecke v. White, 20 Colo. App. 13, 76 Pac. 926.)</p> <p>A riparian proprietor is not permitted, either under the common law or by statute, to impede the passage of fish up or down the stream by means of dams or other artificial obstructions. (13 Am. & Eng. Ency. of Law, 570; State v. Theriault, 70 Yt. 617, 67 Am. St. Rep. 695, 41 Atl. 1030, 43 L. R. A. 290; People v. Eorling, 137 Mich. 406, 100 N. W. 691.)</p> <p>Under the provisions of the. statutes the plaintiff must, in order to state a cause of action, show that his fish ponds were lawfully maintained, and no fish pond can be .lawfully maintained unless it complies with the statutory requirements. (State v. Dolan, 11 Idaho, 256, 81 Pae. 640.)</p> <p>•'Where a pleader wished to avail himself of a statutory privilege or right given by particular facts, he must show the facts. {Dye v. Dye, 11 Cal. 163; City of Peru v. Barrett, 100 Me. 213, 109 Am. St. Rep. 494, 60 Atl. 968, 70 L. R. A. 567; Clark v. Village of North Muskegon, 88 Mich. 308, 50 N. W. 254; Ricks v. Reed, 19 Cal. 551; Flemming v. Indianapolis, 6 Ind. App. 80, 32 N. E. 1135.)</p>

Hon. Alfred Budge, Judge. Action to compel the defendant to deliver to the appellants certain amounts of water. Demurrer to complaint on the ground of misjoinder of parties plaintiff and causes of action. Demurrer overruled and judgment entered for the plaintiffs. The court should have sustained the demurrer on the grounds of misjoinder of parties plaintiff and misjoinder of causes of action.

Hon. Edgar C. Steele,. Judge. Action for mandatory injunction and abatement of a public nuisance, alleged to damage the public as well as private rights. Judgment for defendants.

Hon. Lyttleton Price, Judge. It is not required that the record sent up shall contain any reference to the notice of intention to appeal. The “Notice of Appeal” required to be transmitted is the written notice mentioned in section 8321. Appellant founds his right to a hearing upon section 9, article 5 of the constitution, defining the jurisdiction of the supreme court. He does not concede that section 8042 of the Revised Statutes does not give him the right of appeal.

<p>Constitutional Law — title to Act — -Restrictive—Board and Comprehensive — Construction—Enlargement of . Title by — Contraction of Purview by.</p> <p>1. The title to an act of the legislature approved March 4, 1903 (Laws 1903, p. 346), entitled "An act to prohibit the sale of spirituous malt or vinous liquors near public works and grading camps of canals and railroads and other kindred enterprises," held to be too narrow and restricted to include the provisions of said act providing for the sale of liquors and regulating their sale.</p> <p>2. While said title indicates the absolute prohibition of all sales of liquors near grading camps, etc., the act itself does not prohibit but undertakes to regulate.</p> <p>3. Said title is too restrictive to cover the provisions of said act authorizing the sale of intoxicating liquors.</p> <p>4. The court has no authority to enlarge by construction the title to an act when it is too narrow to cover all of the provisions in the act.</p> <p>(Syllabus by the court.)</p>

Hon. Frank J. Smith, Judge. Action by plaintiff upon a promissory note. Answer and cross-complaint in confession and avoidance. Judgment for the plaintiff; defendant moved for a new trial and appealed from the order denying the same. The court failed to find upon all the material issues presented by the pleadings.

Hon. Geo. H. Stewart, Judge. Action in replevin by the plaintiffs for the recovery of the possession of a number of “slot machines.” Judgment for defendant and plaintiffs appealed.

Hon. Alfred Budge, Judge of the Fifth Judicial District, presiding. Action hy School District No. 27, Cassia County, against the Village of Twin Falls et al., for the recovery of license moneys and fines and penalties.- Judgment for the plaintiff and defendant appealed. It was originally the intention of the legislature that these moneys should not he paid to any school district that was not “in” the limits of the town or village.

<p>Expulsion from Train — Damages—Allegations of Complaint — Evidence — Duty of Carrier — Anxiety and Mental Suffering — ■ Joinder of Actions — Instructions.</p> <p>1. Dnder the provisions of subdivision 2, section 4168, Eevised Statutes, the complaint must contain a statement of the facts constituting the cause of action in ordinary, concise language, and in an action for damages it is sufficient under our statute to allege in general terms that the injury complained of was occasioned by negligence of the servant or employee of the carrier in charge of the train.</p> <p>2. Evidence held sufficient to show that the brakeman did expel the respondent from the train.</p> <p>3. It is the duty of the common carrier to afford protection for its passengers, and if it has in its employ a brakeman who ejects a passenger from the train who is entitled to ride, the company is liable.</p> <p>4. Where a passenger is wrongfully ejected from a passenger train, he is entitled to recover a reasonable compensation for the indignity, humiliation and mental suffering received and resulting from such expulsion, whenever such mental suffering or nervous shock is the natural and proximate result of the wrong done, if such wrong gives the party a cause of action.</p> <p>5. In this case a husband with his sick wife entered the train; he was ejected therefrom and his wife was carried on the train. His anxiety and mental suffering was the proximate result of the unwarranted act of the servant, and was the direet and sole cause of such suffering.</p> <p>6. Under the provisions of section 4093, Revised Statutes, the husband must be joined with the wife when she has a cause of action for personal injuries, and if the husband has a separate and distinct cause of action for personal injuries to himself, he is not bound to join his cause of action with that of his wife.</p> <p>7. The refusal to give certain instructions reviewed and held not error.</p> <p>8. The giving of certain instructions reviewed and held not error.</p> <p>(Syllabus by the court.)</p>

Hon. J. M. Stevens, Judge. Motion by the respondent to vacate and set aside a satisfaction of judgment entered by the clerk of the district court under the provisions of section 4461, Bevised Statutes, and counter-showing by the plaintiff to the effect that the judgment had in fact been paid. Order was entered by the district court annulling and vacating the satisfaction of judgment and ordering the issuance of execution.

Hon. Ralph T. Morgan, Judge. Action in ejectment and for damages. Judgment for plaintiff. If the land in controversy was selected as a site for a city or town, or occupied for townsite purposes, or occupied for business and trade, the homestead and pre-emption laws did not apply to the same, and did not authorize the officers of the land department to permit an entry thereon, or to issue a patent therefor. (19 Stats, at Large, 392; 6 Fed. Stats.

Hon. Ealph T. Morgan, Judge. An action to enforce specific performance of a contract. Judgment for the plaintiff. Held: must bind all the parties, for a decree of specific performance against the defendant is erroneous unless it requires of the plaintiff the performance of his share of the obligations.

<p>Motion to Dismiss — Transcript not Piled in Time — Rules op Court — Removal to United States Court.</p> <p>1. Held, under the facts of this ease, that the appeal was taken within the time required by the statute.</p> <p>2. Under the provisions of paragraph 9 of rule 27 of the rules of this court, the transcript on appeal must be served on the adverse party and filed in this court within sixty days after the appeal is perfected.</p> <p>3. Where a judgment was entered on February 18, 1905, and the notice of appeal was served and filed on the seventeenth day of April, 1905, and the undertaking on appeal filed the eighteenth day of that month, and the transcript on appeal was not filed or served until May 25, 1907, the appeal will be dismissed on motion of the adverse party on the ground that the transcript on appeal was not filed within the time required by the rules of this court.</p> <p>4. Where a party undertakes to remove a- cause commenced in the state court to the United States court, and the cause is remanded on the ground that the United States court acquired no jurisdiction of the cause by such attempted removal, the party undertaking such removal must take the consequences of the same.</p> <p>(Syllabus by the court.)</p>

Hon. Alfred Budge, Judge. Appellant was convicted of the crime of assault with intent to commit rape, and sentenced to serve a term of ten years in the state penitentiary. He appealed from the judgment and order denying his motion for a new trial. The prosecutrix is required to resist to the utmost from the beginning to the end, and this must be positive resistance; no equivocal opposition will be permitted. (He Voy v. State. 122 Wis. 148, 99 N. W. 455; Posey v'.

Hon. Geo. H. Stewart, Judge. Motion to dismiss appeal on grounds that transcript has not been filed in time required by rules of court.

<p>Damages — Herding and Grazing Sheep — Two-mile Limit Law— Ownership of Sheep — Evidence—Offer to Compromise — When Admitted as Evidence.</p> <p>1. The rule is well established that an offer to compromise is not admissible in evidence, but that if an independent admission of a fact such as the handwriting of a party or that a certain item of an account was correct, such independent admission may be introduced.</p> <p>2. Beld, that an offer to compromise was improperly admitted in evidence, and further held that the offer to compromise was not proper rebuttal. The question whether in the offer to compromise a collateral or independent fact has been admitted by one of the parties is a question for the court to determine, and not a question for the jury.</p> <p>3. Impeaching questions should not be permitted unless a proper foundation is laid therefor.</p> <p>4. Beld, that the instructions properly define the term “pre-. ponderance of the evidence."</p> <p>(Syllabus by the court.)</p>

Hon. Edgar C. Steele, Judge. Action to recover balance due on promissory note. Judgment for defendants. The objection to the introduction in evidence of defendant’s exhibits 2, 3, 6, and 7, should have been sustained. Their introduction did not show, or tend to show, payment of any part of the note sued on but brought issues into the case that were clearly and entirely collateral, and their only effect was to confuse and prejudice the jury.

<p>Water Corporations — Duties to Consumers — Duty ot Company to Pay por Its Own Laterals, Pipes and Connections.</p> <p>1. Where the water company has fixed the rates for which it will’ supply consumers with water for domestic purposes, but no rate has-been fixed in the manner prescribed by the statute, and a consumer-offers and tenders the company the monthly rate fixed by it and demands that he be supplied with water, the company will not be-allowed to defend upon the ground that no rate has ever been fixed in the manner prescribed by law, as the primary duty of causing the rate to be established in the manner prescribed by law rests, upon the company.</p> <p>2. All the mains and laterals of a water system within the franchise limit belong to the company owning the franchise, and it is. the duty of the company to construct the same at its own expense- and connect with the pipes of the property owner at the line of his. property and the limit of its franchise.</p> <p>3. Where a' lot owner constructs a building on his property and places water-pipes and fixtures therein, and extends the same to the street adjoining, and thereupon tenders to the water company-the monthly rent charged by it, it becomes the duty of the company to make the necessary tap and connections and furnish the property owner with water as demanded.</p> <p>(Syllabus by the court.)</p>

ORIGINAL application for writ of prohibition. Where the law of the state provides a remedy for the removal of the officer, who has been guilty of willful and corrupt misconduct, and also for extortion and refusing to perform the duties of his office, and the remedy is complete and drastic, and no power of amotion has been granted by the state by general law or otherwise, but the history of the legislation of the state shows that such power has been expressly withheld, either…

<p>APPEAL from the District Court of tbe First Judicial District for Kootenai county. Hon. W. W. Woods, Judge.</p> <p>Aetion for damages on account of trespass and the cutting and removing of timber from plaintiff’s land and excavating and removing the soil therefrom. Judgment for plaintiff and defendants appealed.</p> <p>The action set up in the amended complaint is not a statutory action, although the prayer of the complaint asks that the damages for the cutting and removing of the timber be trebled. It is a common-law aetion. Where the damages are asked to be trebled, it is a common-law action with a cumulative statutory remedy which a party can claim or waive with or without amendment. (Gumaer v. White Pine Lumber Co., 11 Idaho, 591, 83 Pac. 771.)</p> <p>The gravamen of the aetion is trespass, and it is not sought to change it to anything else by the amendment. (Bhemke v. Clinton, 2 Utah, 234.)</p> <p>The record does not show that any objection or exception was taken to the charge to the jury, or any portion thereof, and the objection cannot be made thereto for the first time in the appellate court. (Letter v. Putney, 7 Cal. 423; Wilkinson v. Parrott, 32 Cal. 102; Williams in Southern Pac. By., 110 Cal. 462, 42 Pac. 974; Pielhe v. Railroad Co., 6 Dak. 448, 43 N. W. 813; Black v. City of Lewiston, 2 Idaho, 279, 13 Pac. 80.)</p> <p>The amended complaint charges that the cutting, removal and appropriation of said timber was done wrongfully, unlawfully, willfully and maliciously, and without the knowledge or consent of the respondent, and without any right or title in appellants so to do, all of which was admitted by the default. (Martin v. New York etc. R. R., 62 Conn. 331, 25 Atl. 239Cook v. Skelton, 20 111. 107, 71 Am. Dee. 250; Lanneau v. Ervin, 12 Rich. (S. C.) 31; Warren v. Kennedy, 48 Tenn. 437; Lowe v. Turner, 1 Idaho, 112; Ency. of PI. & Pr., pp. 1153-1158.)</p>

Hon. Ralph T. Morgan, Judge. Action by a co-owner in a mining claim against other co-owners to collect a share of the expenses incurred in working the mine proportionate to the interest owned by each, and to have the same declared a lien'upon the mine. Demurrer to the complaint was sustained, and on refusal to amend, judgment of dismissal was theTeupon entered. Plaintiff appealed.

ORIGINAL proceeding in this court for writ of mandate to compel the court of the first judicial district for the county of Kootenai to hear certain defenses presented by the defendants in the original action. Alternative writ issued, and on return day answer' and motion to quash filed by the defendants.

<p>APPEAL from the District Court of First Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>• Appeal from an alleged order granting an injunction.</p>

ORIGINAL application for writ of mandate. Demurrer to complaint.

<p>Chattel Mortgage — Foreclosure Sale — Injunction to Eestrain Sale — Action by Common Creditor.</p> <p>1. Where an order is made dissolving an injunction and sustaining a demurrer' and the plaintiff refuses or neglects to amend, and thereafter the court enters a judgment of dismissal, and the plaintiff appeals from the judgment within one year after its entry, and more than sixty days after the entry of the first order, the appeal from the judgment is within time and will be considered on its merits, but the appellate court will not review the action of the court in dissolving the injunction.</p> <p>2. Where a creditor of L. & W. commences an action under section 3396, Eevised Statutes, to enjoin the sheriff from the sale of personal property covered by chattel mortgage, and fails to show in his complaint that the debtor is insolvent, or that he has no other property out of which to pay the plaintiff, and no demand has been made upon the debtor for payment, and also fails to show that he has obtained any judgment against the debtor, or has instituted any action against him on the claim or has caused the property about to be sold to be attached as security for the payment of the debt, and fails to connect himself with any interest in or demand upon the property about to be sold; Held, that the complaint does not state a good cause of action and that a demurrer thereto was properly sustained.</p> <p>3. In order to entitle a creditor to an injunction against the sale of personal property secured by a chattel mortgage, and enable him to resist the foreclosure thereof, he should connect himself with some interest in or claim upon the specific property either by judgment, lien or attachment in order to constitute him an “ interested party” within the meaning of section 3396, Eevised Statutes.</p> <p>(Syllabus by the court.)</p>

ORIGINAL application in this court for writ of habeas corpus.

Hon. Edgar C. Steele, Judge. . Action by plaintiff to recover from the defendant a sum-of money, and service had by publication; defendant specially appeared and moved to quash the summons, and service thereof. His motion was denied, and judgment was entered against him. Appeal from the judgment.

Hon. Edgar C. Steele, Judge. Action between alleged partners for an accounting and ■dissolution of the partnership. Judgment for the plaintiff. Motion to dismiss appeal on the ground that an undertaking •on appeal was not filed within the time required by law.

Hon. Edgar C. Steele, Judge. Action against husband and wife to recover a debt for board and- lodging furnished on request of the wife and on her promise to pay therefor. Demurrers to complaint were overruled and defendants refused to answer, whereupon judgment was entered and defendants appealed.

Hon. Edgar C. Steele, Judge. Action by the plaintiff, a resident taxpayer, against the defendant city, and its officers, to cancel a contract and restrain the issuing of bonds to make payment under said contract. Judgment for the defendant. Appeal from the judgment.

Hon. Edgar C. Steele, Judge. , Action to foreclose a mechanic’s lien. Judgment for plaintiff. That the plaintiff had notice of the completion of the first contract when it was finished cannot be doubted when we see from the evidence that four days thereafter, viz., January 20th, it furnished Mr. Morrison with a full statement of his account for lumber used on the job.

Hon. Edgar C. Steele, Judge. Action by the plaintiff to foreclose a materialman’s lien. Judgment for the plaintiff and defendants appealed.

<p>Sunday Rest Law — Prohibition of Business — Police Power — Constitutional Law.</p> <p>1. In the exercise of its police power, a state may prohibit the conduct of business on Sunday.</p> <p>2. The title of the act of March 12, 1907, “An aet to set apart Sunday as a day of public rest; to provide for the closing of saloons and other places of business on Sunday; to prohibit the selling, giving away or disposing of any spirituous, vinous, malt or intoxicating liquors on Sunday; to provide for the closing of places of public amusement and prohibiting horse-racing on Sunday; and to provide for the punishment of those guilty of violating the provisions of this act, and providing for the disposal of all fines collected under the terms of this aet,” does not violate article 3, section 16, of the constitution of this state, which provides, “Every aet shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title,” etc.</p> <p>3. The aet of March 12, 1907, prohibiting keeping open on Sunday for the purpose of trade, etc., any shop, store, building, or place of business whatever, and exempting hotels, restaurants, livery-stables, stores in selling medicine and supplies for the sick, undertakers, news-stands in the quiet sale and delivery of papers and magazines, nonintoxieating refreshments, candies and cigars, and prohibiting saloons from opening or the sale of intoxicating liquor on Sunday, and prohibiting the opening of a theater, playhouse, dance-house, racetrack, merry-go-round, circus, or show, concert saloon, billiard or pool-room, bowling-alley, variety-hall, or any such place of public amusement, prohibiting horse-racing on Sunday, and providing penalties for violations of the act and prescribing the duties of the prosecuting attorney as to such prosecutions, does not take property without due process of law, does not violate the bill of rights, is not special or local legislation, does not discriminate between different persons, and is not unfair or unreasonable under the constitution.</p> <p>4. The legislature is the judge of a proper classification under a Sunday rest law, and its discretion will not be interfered with, unless such law violates some provision of the constitution.</p> <p>5. A law declaring Sunday a day of rest is not unconstitutional, because it does not prohibit all kinds of labor on Sunday.</p> <p>(Syllabus by the court.)</p>

<p>ORIGINAL application for a writ of habeas corpus. Motion to quash writ.</p> <p>Prisoner remanded to custody of officer.</p>

Hon. Edgar C. Steele, Judge. Action to quiet title to certain lands. Judgment for the defendant. Plaintiff appealed. In the case of Edmond D. Potvin v, William Malanfant, tbe affidavit for publication of summons is fatally defective in failing to state where defendant’s residence was, and in showing no effort whatever to find the defendant at that time or to find where he had been.

Hon. W. W. Woods, Judge. Action on an injunction bond for the recovery of attorney’s fees expended in securing the dissolution of the injunction. Judgment for the plaintiff and defendants appealed.

<p>APPEAL from tbe District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action to declare a trust. Judgment of dismissal in favor of defendant. Plaintiff appealed.</p> <p>It has been held time and again that any finding which is not responsive to the issues made by the pleadings should be disregarded, and that such findings will in no way support or lend any support to the conclusions of law or the judgment in the case. (Marks v. Sayward, 50 Cal. 59.)</p> <p>The material findings of fact made by the court are “that the plaintiff and his father paid the Ozark Mining and Milling Company, Limited, a corporation, $375 for stock and $125 on account of one G. A. Nehrhood; that the father, William J. Wilkinson, received of said stock 50,000 shares and plaintiff 10,000 shares of said stock.”' These facts, together with the following admission in the answer, “Defendant admits that said corporation issued 40,000 shares of its capital stock to him” are sufficient to support a conclusion of law and judgment that the defendant holds said stock in trust for the plaintiff. Furthermore, these facts cover all of the issues under the pleadings and were the only facts which the court should have found. (Standley v. FUnt, 10 Idaho, 629, 79 Pae. 815.)</p> <p>“Findings of fact that all the allegations of the complaint are true, and all the allegations of the answer, so far as they are inconsistent with the allegations of said complaint, are not true, are insufficient to support the judgment.” (Krug v. Lux Brewing Go., 129 Cal. 322, 61 Pae. 1125; Bank of Woodland v. Treadwell, 55 Cal. 379.)</p> <p>The findings should be responsive to all the material issues made by the pleadings and should cover all such issues. (Wood v. Broderson, 12 Idaho, 190, 85 Pac. 490.)</p> <p>Appellant takes special exception to the general findings, to wit, “That the allegations of plaintiff’s complaint are not supported by the evidence and are untrue, ’ ’ and cites Krug v. Lux Brewing Co., 129 Cal. 322, 61 Pae. 1125. In that case the court held that such a finding is sufficient, and cites Williams v. Kail, 79 Cal. 606, 21 Pac. 965. (See, also, Johnson v. Kline, 70 Cal. 186, 11 Pae. 606.)</p> <p>In determining whether the findings of fact support the judgment, the findings must receive such construction as will uphold rather than defeat the judgment; and if, from the facts found, other facts may be inferred which support the judgment, it will be assumed that the trial court made the inferences. (Paine v. Sam, Bernardino Valley Traction Go., 143 Cal. 654, 77 Pae. 659; Gardner v. Stare, 136 Cal. xix, 69 Pac. 426; Beardsley v. Glem, 137 Cal. 328," 70 Pac. 175.)</p>

Hon. Lyttleton Price, Judge. Action to quiet title to an interest or estate in a ditch and laterals. Judgment for plaintiff. Defendant appeals. Motion to dismiss appeal. If jurisdiction is secured through the voluntary appearance of the respondent, it is immaterial to the court whether or not an undertaking has been filéd. (2 Ency. of PI. & Pr. 618, 619, 632; 17 Am. & Eng.

<p>Complaint — Demurrer—Cause Up Action — Statute op Limitations— Trusts — Express and Implied — Amendment op Complaint — Tenants in Common — Ouster—Adverse Possession — Beal Estate— Deed — Notice op.</p> <p>1. Held, that the demurrer to the complaint was properly sustained.</p> <p>2. The trust alleged in the complaint is an implied trust, or one arising from an implication of law, and was not an express trust created by the direct and positive acts of the parties.</p> <p>3. Express trusts are not within the operation of the statute of limitations, but trusts which arise from an implication of law or constructive trusts are within the operation of the statute of limitations. (Revised Statutes, sec. 4036.)</p> <p>4. Where one eotenant takes a deed conveying to him a part of the real estate owned by said cotenants and records said deed in the proper office, such recordation is notice of the cotenant’s claim to such real estate.</p> <p>(Syllabus by the court.) '</p>

<p>Appeal — Adverse Party — Service op Notice.</p> <p>1. Revised Statutes, section 4808, requires that a notice of appeal shall be served upon the adverse party. “Adverse party,” as used in this section, means any party who would be prejudicially affected by a reversal of the judgment, a party who has an interest in conflict with a reversal of the judgment.</p> <p>2. Where R. and O. were made defendants in an action to recover for labor and to foreclose a lien, and facts are not alleged showing an indebtedness due said R. & O., or that they claimed or were entitled to a lien, and they filed no pleading in said cause, or set forth their lien in any manner, and the court made no finding in their favor, or against them, and the judgment in no way granted them any right or gave them anything, or denied them any claim or right, and it affirmatively appears from the record that such parties would not be prejudicially affected by a reversal of the judgment: Held, that even though they appeared by general appearance only, in said action, they were not entitíed to any notice of an appeal from the judgment.</p> <p>(Syllabus by the court.)</p>

PETITION for writ of certiorari to review an order or judgment of the judge of the district court of Shoshone County. Hon. Fremont Wood, Judge of the Third Judicial District, sitting at chambers in the First Judicial District in and for Shoshone County.