Volume 13 — South Dakota Reports

Hon. J.' O. Andrews and Hon. A. W. Campbell, Judges. Action by the Citizens’ National Bank of Watertown against the Great Western Elevator Company to recover upon certain warehouse receipts. From a judgment for plaintiff, defendant appeals.

<p>1. Where a county treasurer received partial payments on personal taxes, and receipted therefor as treasurer, which he was not authorized to i-eceive, he received them for the county, and not in trust for the parties paying; and hence the sureties were liable therefor on his bond, conditioned that he would faithfully perform the duties of the office, and account for all moneys coming- to him as treasurer.</p> <p>2. The sureties on the bond of a county treasurer for his second term- only were liable for moneys received by him during his first term, when, during the second term, he had charged himself with the amount as being paid over to himself as his own successor, thereby admitting the amount to be in his hands.</p> <p>3. Where a bank refused to surrender a deposit made by a county treasurer, and, in order to recover it, the sureties on his bond agreed that the county might bring suit therefor without losing its right t-o bring subsequent action against the sureties for “about $700” for certain moneys received and unaccounted for by the treasurer, such agreement did not in any manner fix and limit the amount the county might recover in the subsequent action against the sureties.</p> <p>4. Sureties on the bond of a county treasurer for the second term only were not liable for moneys received by him during his first term, which he had not charged himself as having received on entering on his second term.</p> <p>5. The sureties on the bond of a county treasurer are liable for overpayments made by the treasurer to certain school districts, it not being shown that the county received any benefit from the overpayments.</p>

Hon. Joseph W. Jones, Judge. Action by the Minnehaha National Bank against J. W. Harley, upon,a promissory note. From an order denying a motion to vacate a judgment in favor of plaintiff, defendent appeals.

<p>1. A finding of a trial court will not bo disturbed lor insufficiency of evidence unless there is a olear preponderance of evidence against it.-</p> <p>2. Where, in a case tried without a jury, the issue, was whether defendant had purchased a certain note believing he was dealing with plaintiffs authorized agent, testimony as to what the agent said at the time of negotiating the note, while nor evidence of the agent’s authority, was admissible to show the purchase and good faith of defendant.</p> <p>3. On a trial 1o the court it will not. be presumed the court considered evidence for any other than the purpose for which it was properly admitted.</p>

<p>An aclion in claim and delivery to recover wops produced by a tenant cannot bo maintained where the fomintisonly performing a duty with reference to the crop imposed on him by his least', is not asserting a right to possession, and no demand for posst ssion has been made on him.</p>

<p>Appeal from circuit court, Spink county. Hon. A. W. Campbell, Judge.</p> <p>Action by the D. S. B. Johnston Land-Mortgage Company against A. G. Case, the First National Bank of Charles City, Iowa, intervening to set aside certain tax deeds. From a judgment for defendants and an order denying a motion for a new trial, plaintiff appeals.</p>

Hon. Loring E. Gaffv. Judge. Action by John Nelson against Johanna Jordeth and others. Prom a judgment in favor of defendants, plaintiff appeals. Application for leave to insert a tax deed in the bill of exceptions.

<p>Whore plaintiff in an action to redeem from a sale under a senior mortgage obtained a judgment, which was affirmed on appeal, and again on rehearing, with costs, and defendant made no objection to the action of the trial court taxing the costs against him, a motion in the supreme court to retax costs will he ¿enied, since the defendant, if dissatisfied as to the costs below, should have made timely objection in the trial court; and, having taken his chances on securing a reversal on appeal, and failed, there is no reason why the costs incurred thereby should not be taxed against him.</p>

Hon. A. W. Campbell, Judge. Application by. the National Life Insurance Company of Montpelier, Vermont, for a writ of mandamus against Corwin D. Mead, as treasurer of the city of Pierre, to compel the payment of certain interest coupons. From a judgment dismissing the application plaintiff appeals.

<p>Appeal from circuit court, Hughes county. Hon. Loring E. Gappy, Judge.</p> <p>Action by William T. Golding and another against Hughes county. From a judgment for plaintiff, defendant appeals.</p>

<p>Original application for mandamus by Mary A. Vine and others against Joseph W. Jones, judge of the circuit court of the Second judicial circuit, and another.</p> <p>No briefs filed.</p>

Hon. E. G. Smith, Judge Habeas corpus by E. J. Taber, committed for contempt for his release from custody. From a judgment denying the writ, applicant appeals.

Hon. A. W. Campbell, Judge. Action by Frederick E. Mather against James Darst and others to foreclose a real estate mortgage. From a judgment for defendants, plaintiff appeals.

Hon. Julian Bennett, Judge. Action by Louis Kohn against Charles H. Lapham and another to cancel of record a certain mortgage; From a judgment in favor of defendants, plaintiff appeals. The title acquired by Kohn at the sheriff’s sale related back to the levy of the attachment on July 11, 1895, at which time the Brown mortgage was not of record. Waples’ Attachment, Sec. 853; 3 Ency. of Law, page 223; Freeman on Executions, Sec. 195.

Hon. Julian Bennett, Judge. Election contest by George Moody against Seth E. Davis. From a judgment in favor of plaintiff, defendant appeals. The provisions of Chapter 81, Laws 1899, are mandatory as regards the manner of expressing the intent of the voter and a ballot marked with a cross in the circles at the head of two party tickets is void. McMahon v. Polk, 73 N. W. 77; Vallier v. Brakke, 64 N. W. 185; McKittrick v. Pardee, 65 N. W. 26; Parvin v. Wimberg, 30 Amer.

Hon. W. A. Wilkes, Judge. Action for commissions by P. F. Sherman and others, co-partners, against the Port Huron Engine & Thresher Company. From a judgment in favor of defendant, plaintiffs appeal.

Hon. J. W. Jones, Judge. Injunction by William Stanton Macomb against Lake county and others to restrain the selling of property for taxes. Judgment for plaintiff. From an order refusing plaintiff costs in addition to actual disbursements, he appeals.

Hon. Joseph W. Jones, Judge. Suit by C. H. Cassill, receiver of the property of Joseph Morrow, against Joseph Morrow and another, to subject certain real property to the lien of a judgment. From a decree in favor of defendants and an order overruling a motion for a new trial, complainant appeals.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by E. W, Coughran against John Sundback and others for a recovery upon an appeal bond. From a judgment for defendants, plaintiff appeals.</p> <p>The bond in suit, while not sufficient to operate as a stay • bond, was yet good as a common-law obligation, its penalty being in such a sum as to indicate that its purpose was to secure the payment of the anjjount found tobe the value of the property and the undertaking having been treated and accepted as en tirely regular by the parties. Nunn v. Goodlet, 10 Ark. 89; Dore v. Covey, 13 Cal. 502; Mix v. People, 86 111. 329; Meserve v. Clark, 115 111. 580; Field v. Schricher, 14 la. 119; Pray v. Wascull, 146 Mass. 324; Grantor v. Parker, 142 Mass. 186; Heale v. Newton, 96 Mich. 228; Minor v. Rodgers, 65 Mich. 225; Jones v. Droneberger, 23 Ind. 74; Railsback v. Greve, 58 Ind. 72; Adams v. Thompson, 18 Neb. 541; Goodwin v. Bunzl, 102 N. Y. 224; Thompson v. Lea, 28 Ala. 453; McElroy v. Mumford, 128 N. Y. 303; Braithwaite v. Jordan 65 N. W. 701.</p> <p>Cited Contra:- — Elliott v. Buckland, 37 How. Pr. 71; Carter v, Hodge, 150 N. Y. 532; Post v. Doremus, 60 N. Y. 371; Central Lumber & Mill Co. v. Center, 40 Pac. 334; Whitney v. Allen, 21 Col. 234; Powers v. Crane, 7 Pac. 135; Powers v. Cbabot, 28 Pac. 1070; Drinkwine v. Eau Claire, 83 Wis. 428; Kountze v. Omaha Hotel Co. 107 U. S. 378; Concordia Sav. & Aid Assn. v. Read, 124 N. Y. 189.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by W. I. Ferguson against S. S. Yunt to recover upon a bond. From a judgment for plaintiff, defendant appeals.</p>

Hon. A. W. Campbell, Judge. Mandamus by the state, on the relation of Hugh. R. Cospor, against John P. Porter, as sheriff, and others. Prom an order sustaining defendants’ demurrer to the application, relator appeals.

Hon. Joseph W. Jones, Judge. Action by Annie Benard against the Grand Lodge of the Ancient Order of United Workmen of the Dakotas and Emma Roberts to recover on a life insurance certificate. From a judgment in favor of defendant Emma Roberts, plaintiff appeals. The agreement between ■ appellant and the assured was of such a nature, and appellant had such an interest in the benefit certificate as to estop the assured from in any manner chang ing the beneficiary.

<p>The appellate court will not disturb findings of the trirl court, unless clearly against a preponderance of the evidence.</p> <p>Fuller, P. J., dissenting.</p>

Hon. Joseph B. Moore, Judge. Jacob Klatt was convicted in the circuit court of Lawrence county for violations of an ordinance of the city of Lead, and he appeals.

<p>Appeal from circuit court, Lyman county. Hon. Frank B. Smith. Judge.</p> <p>Action by Dortha H. Fodness against Henry Juelfs, sheriff, and others to recover the value of certain personal property alleged to have been taken from her possession wrongfully. From a j udgment for plaintiff, defendants appeal.</p>

Hon. Joseph B. Moore, Judge. Action by Joseph Unterrainer, administrator of the estate of John Lang, deceased, against Michael Seelig. From a judgment in favor of plaintiff, defendant appeals. The right of administrators to submit matters in dispute between the estate and other parties to arbitration is not taken away by a statute providing for . the compromise of a claim with the approval of the Probate Court. N. Y. Lumber & Wood Working Co. v. Schneider, 24 N. E. 4.

<p>Appeal from circuit court, Miner county. Hon. Frank B. Smith, Judge.'</p> <p>Action by Joseph A. Shimei'da against A. W. Wohlford and another to quiet title, and for an accounting. From an order overruling a demurrer to the complaint, defendant Wohlford appeals.</p>

Hon. W. A. Wilkes, Judge. Action by Edgar L. Smith against Artemas Galo to recover upon an appeal bond. Prom an order overruling a de murrer to the complaint, defendant appeals.

<p>Error to circuit court, Codington county. Hon. Julian Bennett, Judge.</p> <p>Thomas Lewis was convicted of burglary, and brings error.</p>

<p>A complaint to recover the amount paid, to defendant for a county warrant alleged that plaintiff bought the warrant from defendant under defendant’s representation that it was a legal and bona fide charge against the county, whereas defendant well knew that the warrant was illegal and that payment thereof would be enjoined, and that, after plaintiff paid defendant for the warrant, payment thereof was enjoined, and the warrant declared void. Held, that the complaint stated facts sufficient to constitute a cause of action under Code Civ. Proc §§ 3588, 3599, providing that one who willfully deceives another is liable for damages caused thereby.</p>

Hon. Joseph B. Moore, Judge. Action by Alice Chandler against Fannie Hill to recover possession of certain personal property. From a judgment of the circuit court in favor of plaintiff on an appeal from a justice of the peace, defendant appeals.

<p>Appeal from circuit court, Yankton county. Hon. E. Gt. Smith, Judge.</p> <p>Action by Charles E. Carpenter against Herman Schanche. Judgment for plaintiff, and from an order granting a new trial he appeals.</p>

<p>Appeal from circuit court, Minnehaha coi’-"'y. Hon. Joseph W. Jones, Judge.</p> <p>Suit by Porter P. Peck against Margaret Zborowski. From a judgment in favor of complainant, defendant appeals.</p>

<p>Appeal from circuit court, Lake county. Hon. Joseph W. Jones, Judge.</p> <p>Action by C. H. Weiss against Louisa Evans to recover for goods sold and delivered. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence of an oral agreement between a deposil nr and a bank that a deposit should be applied to the payment of the depositor’s note given to the bank is admissible against a sheriif seeking to enforce by action an execution levy on such deposit, as the property of the depositor, as showing- an agency in the bank officers to make such application; and. such evidence does not vary the terms of the note,"though the note was not due when the agreement was made.</p> <p>2. Evidence that a deposit on which it was sought to levy an execution, had already been applied by the bank to the payment of the depositor’s note which it held, under agreement with the depositor that it should be so applied, is relevant to the issue as to whether any deposit existed at the time of levy, on which levy could be made, and is admissible.</p>

<p>Act Gong. Oot. 1. 1890, granted lands to the state to be used as a permanent camp and parade ground, and for-such other purposes, in connection with the training and education of the militia, as the legislature may direct, the lands to revert to the United States when the state sbail cease to use them for such purposes. Held that, in the absence of legislative provision, such lands are in the care and control of the governor, as commander in chief of the military forces of the state.</p>

Hon. J. B. Moore, Judge. Mandamus by the Meade County Bank of Sturgis against James D. Reeves, as auditor of South Dakota, to compel the drawing and delivery of certain warrants. From a judgment in favor of plaintiff, defendant appeals.

Hon. E. G. Smith, Judge. Action by Alfred W. Thomas against Thomas Fullerton and others, to recover damages for the taking of certain personal property. From an order granting a new trial, defendants appeal.

Hon. Joseph B. Moore, Judge, Clarence L. Bradford was indicted for a violation of the liquor laws. A demurrer to the indictment was sustained and the state brought error. In an opinion found in 12 S. D. 207, 80 N. W. 148, the decision of the trial court was reversed. A rehearing was subsequently granted. This opinion is upon the rehearing.

Hon. J. 0. Andrews, Judge. Action by the First State Bank of Elkton against Mary O'Leary and others to set aside a conveyance as fraudulent as to creditors. From a judgment in favor of defendants, plaintiff appeals.

Hon. Julian Bennett, Judge. Action by Emma Ricker against Jonathan B. Stott and others to foreclose a mortgage, and to cancel the release of record of another mortgage, and foreclose it. Prom a judgment for complainant, defendant Wilhelmina Shultz appeals.

<p>1. Whether proof of the correctness of a map purporting to represent: a topographical sketch of lands in controversy is sufficient to authorize its admission in evidence is a question of fact for the trial judge, and, in the absence of any injury resulting from its admission, his decision will not be reviewed.</p> <p>2. The giving of contradictory instructions is harmless, where it is clear that the jury has not been mislead, and it appears that the incorrect instruction is most favorable to appellant.</p> <p>3. An instruction given in substance in the general pharge js prppeply refused,</p>

<p>1. A foreign insurance company, which sent a letter to the person acting as insurance commissioner, authorizing him to select a paper in which to publish its annual statement, and agreeing to pay therefor when the publication was completed, is liable therefor, whether the person to whom the letter was sent was a de jure or de facto commissioner when the contract for publication was made, since the selection of the paper and procuring the publication of the statement are no part of the commissioner’s duties.</p> <p>2. Laws 1897, Chap. 69, § 4, provides that the commissioner of insurance shall not act as a director, officer, agent, or attorney of, or be directly interested in, any insurance company. An insurance company authorized the person acting as insurance commissioner to procure the publication in a newspaper of its annual statement, and agreed to pay therefor when published satisfactorily to the commissioner. Ifelcl, that the company, after a satisfactory publication, cannot defend an action for the price of the publication on the ground that the commissioner was prohibited from acting as its agent.</p>

Hou. Joseph W. Jones, Judge. Action by Mary Aspey against Rose A. Barry and others for the partition of land. From a judgment declaring plaintiff to be entitled to two-ninths of the land only, she appeals. The facts are stated in the opinion. A timber culture claim proven up after the death of the entryman is granted direct to the heirs of the deceased entry-man is not devisable.

Hon. E. G. Smith, Judge. Action by Asel Eyes against Albert B. Wilcox and others to determine plaintiff’s interest in land. From an order requiring defendants to make their answer more specific, they appeal. The facts ai’e stated in the opinion. To refuse to require unnecessary or redundant allegations to be made more definite and certain is not error. McCarville v. Boyle, 62 N. W. 517; Spensley v. Mfg.

Hon. Joseph W. Jones, Judge. Action by Fred E. Phillips and others against Arthur C. Phillips and others to set aside conveyances of real estate. From a judgment in favor of the defendants, plaintiffs appeal. The facts are stated in the opinion. Where a petition for sale of decedents real estate does not state the facts necessary to give the court jurisdiction, all proceedings thereunder are a nullity.

Hon. Loring E. Gaffy. Judge. Action by Frank L. Garvin against F. A. Pettee and others to determine conflicting claims to certain shares of-bank stock. From an order dissolving a temporary injunction, plaintiff appeals.

Hon. Prank B. Smith, Judge. Jobn M. Hellekson was convicted of grand larceny, and from the judgment he brings error. The facts are stated in the opinion. A court takes judicial notice of the counties embraced within its own jurisdiction. U. S. v. Beebe. 2 Dak. 292; 1 Grecnloaf on Evidence, § 6.

. Hon. Frank B. Smith, Judge. G. B. Lindley was convicted of larceny of money, and, his motion for a new trial being overruled, he brings error. The facts are stated in the opinion. An instruction not supported by substantial evidence is reversible error. Rosenkrantz v. Wolf, 115 Ill. 331; 2 Enc. of PI. and Pr. 576.

Hon. Frank B. Smíth, Judge. Suit between James Mackrell and another and Mary J. McGullom to quiet title. From an adverse decree Mary Mc-Cullom appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by the Northern Grain Company against Levi Pierce for the recovery of certain mortgaged property. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. A bill of particulars is not a pleading, forming an issue, and is not subject to demurrer. Columbia Acc. Ass’n. v. Rockey, 25 S. E. 1009; Barr v. Voorhees, 85 Atl. 651.

Hon. Frank JB. Smith, Judge. Action by K. O. Stakke and another against George T. Chapman on certain notes. From a judgment in favor of plaintiffs and an order refusing to satisfy the judgment on the payment of the principal without a payment of the costs, the defendant appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by George R. Finch and others, a co-partnership under the firm name of Finch,VanSlyke, Young & Co., against S. C. Martin and another, partners under the firm name of S. C. Martin & Co. From an order granting' a new trial to one of the defendants, plaintiffs appeal. • The facts are stated in the opinion. A verdict will not be set aside when sustained by any legal evidence.

Hon. Julian Bennett, Judge. Replevin by Minneapolis Threshing Machine Company against A. I. Darnall. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. A cause of action sounding in tort can not be set off against a claim arising on contract.

Hon. Joseph W. Jones, Judge. Suit by Julia H. Hull against Daniel Hayward, impleaded with Charles N. Fleetwood and others to foreclose a certain mortgage. Decree for plaintiff, and from that part of the decree adjudging him liable for any deficiency resulting from a sale of the mortgaged premises Daniel Hayward appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by the Standard Rope & Twine Company against A. M. Olmem and others for goods sold and delivered. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. To constitute a sale by sample it must appear that the parties contracted solely with reference to the sample, and mutually understood that they were so dealing with the quality of the bulk. 10 Am. & Eng. Enc.

Hon. J. O. Andrews, Judge. Action by the La Crosse Boot & Shoe Manufacturing Company against the Mons Anderson Company, the Tolerton & Stetson Company, and Joe Kirby, for conversion of a stock of merchandise. Judgment for defendants, and from an order granting a new trial defendants appeal. The facts are stated in the opinion. An exhibit in writing imports a consideration and the burden of showing a want of consideration lies with the party seeking to avoid it.

Hon. E. G. Smith, Judge. Action by Bon Homme county, S. D., against Friedrich Berndt and another. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. Where part of a statute is unconstitutional, the remainder •will not be so declared, if the two are distinct and separable so that the latter may stand. Ritchie v. People, 46 Am. St. 315; Cooley Const. Lim. 5th Ed. 211; People v. Bull, 40 N. Y. 57; Cohn v. People, 41 Am.

Hon. Julian Bennett, Judge. Proceedings by the board of supervisors of Lincoln township, Clark county, S. D., to establish a highway. From a judgment of the circuit court sustaining an award of the board of supervisors of §40 to appellant as compensation for his land appropriated for such highway, he appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by A. W. Morris and another against the Union National Bank of Sioux Falls for damages sustained on account of delay in protesting a promissory note. From a judgment for defendant, plaintiffs appeal. The facts are stated in the opinion. A bank is liable for the negligence of a notary public employed by it to make presentment and protest. Ayrault v. Bank, 47 N. Y. 573; Allen v. Bank, 34 Am. Dec. 289; Gerhardt v. Saving Institution, 90 Am.

Hon. Joseph W. Jones, Judge Action by E. L. Smith against Den Donahoe, as sheriff of Minnehaha county. From a judgment in favor of plaintiff, defendant appeals. Tbe facts are stated .in the opinion. Any surplus remaining of the purchase price received at a chattel mortgage foreclosure sale belongs to and is held by the party making the sale in trust for the mortgagor. Jones on Chattel Mortgages, §§ 712, 817; Cobbey on Chattel Mortgages, § 984.

<p>Appeal from circuit court, Hughes county. Hon. A. W. Campbell, Judge.</p> <p>Action by James J. Ransom against Corwin D. Mead, treasurer of the city of Pierre. Judgment for plaintiff.- Defendant appeals.</p>

<p>Appeal from circuit court, Hughes county. Hon. A. W. Campbell, Judge.</p> <p>This case was first determined by this court in an opinion reported in 13 S. D. 37, 82 N. W. 78, in which opinion the judgment of the trial court in favor of the defendant, was reversed.</p>

<p>Plaintiff sued to enforce a contract to convey real estate. After making the contract, the purchaser entered on the land, and constructed a house, and occupied it with his family. A policy of insurance was taken_ out on the house in the name of the vendor, at his request, but the premium was paid by the purchaser. After taking out the insurance, the purchaser’s wife assumed all the liabilities of her husband, and succeeded to his rights under the contract of purchase, and while she so held the property the house was destroyed by fire. Held, that the insurance money collected by the vendor was held in trust for plaintiff, and that on tendering the purchase price less the insurance she was entitled to a conveyance.</p>

Hon. A. W. Campbell, Judge. Action by the Charles Betcher Company against Hannah P. Cleveland and others. Judgment for plaintiff, and defendant Seymore appeals. The facts are stated in the opinion. The taking of a note with securities by the party entitled to a mechanics lien constitutes a waiver of the lien. Ed. P. Allis Co. v. Madison, 70 N. W. 650. A mechanics lien cannot attach to a homestead.

Hon. Frank B. Smith, Judge. Action by George A. Hanna and another against Alfred I. Stroud and others to foreclose a mortgage and enforce payment of a bond. From a judgment ip favor of the plaintiffs, and against defendant the Northwestern Loan & Banking Company for any deficiency arising after 'sale, it appeals'.

Hon. William Gardner and Levi McGee, Judges. Action by the First National Bank of Rapid City against Patrick B. McCarthy and others. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals. The facts are stated in the opinion. The trial court has no jurisdiction to grant or refuse a new trial unless the notice of intention to move for a new -trial has been given in the manner prescribed by the statute.

Hon. Joseph B. Moore, Judge. Action by the First National Bank of Deadwood against Joseph Hattenbach and others to recover upon a promissory note. There was a judgment in favor of the plaintiff against defendants Joseph Hattenbach and another, and they appeal.

Hon. Joseph B. Moore, Judge. Action by Bryan E. Rossiter against Daniel C. Boley for services. From a judgment in fayor of plaintiff, defendant appeals. The facts are stated in the opinion. It is only as against a spoliator of evidence that all things are presumed. 1 Greenleaf Ev. § 37; Cartier v. Lumber, 28 N. E. 932; Armory y. Delamirie, 1 Smith Lead Cases, 581; Fox v. Hale & Norcross, 41 Pac. 322.

Hon. A. W. Campbell, Judge. Action by the Manhattan Trust Company against the Richards Trust Company and another to cancel a certain real estate conveyance. From a judgment for defendants, plaintiff appeals.

Hon. Loring E. Gaffy, Judge. Action of forcible entry and detainer by Sarah Karcher against Hattie E. Gans. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. ' * When a statute is amended by the form “to read as follows,” the intention is manifest to make the provision following a substitute for the old provision. Knox v. Baldwin, 80 N. Y. 610: Goodno v. Oshkosh, 31 Wis. 127; State v. Ingersol,17 Wis. 631.

Hon. A. W. Campbell, Judge. Action by D. J. McCuish, assignee of the Stillwater Lumber Company, against E. W, Smail, for a balance due the assignor on account of sales of lumber. From a judgment in favor of plaintiff, defendant appeals.

Hon. Loring B. Gaffy, Judge. Action on a nóte by Cassius C. Bennett, assignee for the benefit of creditors of the Pierre Savings Bank, of Pierre, S. D., against A. L. Ellis and Libbie J. Ellis. From a judgment in favor of plaintiff, defendants appeal.

<p>Appeal from circuit court, Roberts county. Hon. A. W. Campbell, Judge.</p> <p>Action on a note by S. R. McConnell and I. C. McConnell, co-partners as S. R. & I. C. McConnell, against F. T. Spicker. From a judgment in favor of plaintiffs, defendant appeals.</p>

Loring E. Gaffy, Judge. Action by the Bank of Ipswich against Neils S Brock and others. From a judgment in favor of defendants, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph B. Moore, Judge. Action by William A. Remer against Lawrence county, to recover fees alleagecl to be due for services as sheriff. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>Action by the city of Huron against H. Ray Meyers. Prom a judgment for plaintiff, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>Coupons are written contracts for the payment of a defi- ■ nite sum of money on a given day. Aurora v. West, 7 Wall. 82; Cromwell v. Sac Co. 94 H. S. 362; 4 Am. & Eng. Ency. 432, Law. The holder of such a coupon is entitled to be paid the amount it calls for at its maturity by the treasurer on presentment. Murray v. Lardner, 2 Wall. 110; 5th Ward Sav. Bk. v. Bank, 7 At]. 318; Hotchkiss v. Bank, 21 Wall. 354; Hamilton y. Vaught, 34 N. J. L. 187; 5 Am. Rep. 5882; Everston v. Bank, 66 N. Y. 14; Chompert v. Ins. Co. 10 La. Ann. 754.</p> <p>A judgment is bad if it decides only a part of tha/t which is in issue. Patterson y. U. S. 2 Wheat, 222; Holt v. Van Epps, 1 Dak. 199; Dale v. Burleigh, 1 Dak. 218; Quick v. Brenner, 101 Ind. 280; Gray v. Taylor, 2 Ind. App. 155.</p> <p>A counterclaim must contain all the substantial averments necessary to a complaint. McKinney v. Sundback, 3 S. D. 106; 52 N. W. 322.</p> <p>The findings of the court will not be disturbed when there is any evidence to support them. Evenson v. Webster, 5 S. D., 266; Randall v. Burke, 4 S. D. 337; Felldman v. Trumbower, 7 S. D. 408; Jasper v. Hazen, 4 N. D. 1.</p>

<p>Appeal from circuit court, Meade county. Hon. J. B. Moore, Judge.</p> <p>Action upon a promissory note by George L. Balcom against William H. O’Brien and wife. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from circuit court, Pennington county. Hon. Levi McGee, Judge.</p> <p>Action by the State against Pennington county to require the latter to account for certain taxes. Prom a judgment for defendant, plaintiff appeals.</p>

Hon. E. G. Smith, Judge. Action by George V. Bunker aud others, administrators of James V. Bunker, deceased, substituted by order of court in place of Lucy M. Bunker, deceased, against C. B. Taylor and Maris Taylor, on a note. From a judgment for plaintiffs, Maris Taylor appeals. The facts are stated in the opinion. There is no relation of privity at common law between an executor or administrator and an administrator de bonis non. Craves v. Flowers, 51 Ala. 402; 23 Am.

<p>Appeal from circuit court, Douglas county. Hon. E. G. Smith, Judge.</p> <p>Action by the St. Paul White Lead & Oil Company against P. M. Tibbetts and'another to recover a balance alleged to /be due for goods sold and delivered. Prom a judgment in favor of plaintiff, defendants appeal.</p>

Hon. Julian Bennett, Judge. Action by the Northwestern Elevator Company against B. E. Lee and others, as a board of county commissioners of Codington county. From a judgment in favor of defendants, plaintiff appeals.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action to settle adverse claims to realty. This case was first determined by this court in an opinion filed September 2, 1899, reported in 12 S. D. 191, 80 N. W. 197, in which opinion the judgment of the trial court in favor of the plaintiff was affirmed,</p>

<p>A mining deed in the ordinary form conveyed mining property to one described as “trustee, and to his heirs, successors and assigns forever.” There was also a verbal understanding between the parties that the grantee might sell the property, aad pay the proceeds to the grantor. Held, that the mere adddition of the word “trustee” to the name of the grantee did not create a trust, or charge a bona fide purchaser for value from him with notice of any trust or claim in favor of the original grantor, so as to render him an involuntary trustee.</p>

<p>1. A complaint alleging that plaintiff is the owner of certain land, and is entitled to the immediate possession thereof, and that defendants are in possession claiming some right, title, or interest therein, states a cause of action under Comp. Laws, § 5449, to determine the adverse claim or interest, notwithstanding further allegations as to the nature of defendants’ title, and the defects therein, which are surplusage, and do not change the character of the action.</p> <p>2. Comp. Laws, § 3303, which provides that “every grant of real property, other than one made by the state, or under a judicial sale, is void, if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of the grantor,” cannot be invoked in support of a demurrer to a complaint to recover land, which alleges that plaintiff has been the owner of the property since a certain date, because the complaint also shows that defendants have been in possession since prior to such date, as the demurrer admits the allegation of ownership, which implies a title lawfully acquired, unless the contrary appears from the pleading.</p>

Hon. A. J. Plowman, Judge. Action by Peter Neilson against Adolph Holstein in justice court.. An appeal by defendant to the circuit court from a judgment for plaintiff was dismissed, and defendant appeals.

Hon. Loring E. Gaffy, Judge. Action by Lewis Tillotson against Potter county and others to recover moneys paid as clerk hire to a deputy. Appeal by plaintiff from an order sustaining a demurrer to the complaint.

Hon. Joseph W. Jones, Judge James Shields was convicted o'f au assault with intent to commit a felony, and he appeals. The facts are stated in the opinion. An information charging an assault with intent to commit any felony, should specifically state the acts done or threatened constituting such felony. State v. Walson, 27 Pac. 226; Sipple v. State, 46 N. J. L. 197; McLain on Criminal Law, § 224. Under such a charge the intent is an essential element.

Hqn. Julian Bennett, Judge. Action by Thaddeus Stringer and others against the Golden Gate Mining & Milling Company. From a judgment in favor of plaintiffs, defendant appeals. „ The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Proceedings instituted by W. J. Bell for probate of will of Jennie M. Bell, deceased, Courtney Starkweather, contestant. From the judgment of the circuit court rejecting the will, proponent appeals. The facts are stated in the opinion. When a will once knowm to exist and to have been in the custody of the testator, cannot be found after his death, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.

Hon. A. J. Plowman, Judge. Action by Christian S. Ruth against Nathan W. Wells and others to enforce the liens of two judgments. From a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. No statute of limitations, nor any bar by analogy to the statute, can be relied on as between a trustee of an express trust and his Cestui qui trust.

Hod. Levi McGee, Judge. Action by Julia A. Lintz against the Holy Terror Mining Company. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The word heir in the statute means children, only. Jordan v. Railroad, 11 S. W. 1013; Haskel v. Louisville, 24 S. W. 879; Noble v. Seattle. 52 Pac. 1013; Hindry v. Holt, 51 Pac. 1002; Comp. State, 5499; Belding v. Railroad, 3 S. D. 369; Smith v. Railroad, 6 S. D. 583.

Hon. Julian Bennett, Judge. Action by Hanna Nordin and others against Christ Kjos arid Christ Bjornethum, partners as Kjos & Bjornethum. J-udg ment on demurrer dismissing the complaint as to the plaintiff Hanna Nordin, and she appeals. The facts are stated in the opinion. A divorced woman cannot maintain an action to recover damages under Chap. 72, Session Laws of 1897. Black on Intox. Liquors, §279; Schneider v. Hosier, 21 Oh. St. 98.

Hon. Joseph W. Jones, Judge. Action by Annie B. Murphy against the Plankinton Bank and William Plankinton. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. An instrument in the form of a deed but in reality, a mortgage, should be recorded and registered in the mortgage records. Day v. Dunham, 2 Johns Ch. 182; GiLligg v. Moss, 28 N. Y. 191; James v. Morey, 2 Cowen, 246; Bank v. Bank, 42 Am. Dec. 240; Friedly v. Hamilton, 17 Am.

Hon. Lor-, ing E. Gaffy, Judge. Action by Gilbert S. Walker against James L. McCaull and Douglas Webster, partners as McCaull, Webster & Co. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by A. W. Thomas against Douglas county. From an order overruling a demurrer to the complaint, defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Douglas county. Hon. E. G. Smith, Judge.</p> <p>Action by J. W. Lindsay against Douglas county. From an order overruling a demurrer to the complaint, defendant appeals.</p>

Hon. Julian Bennett, Judge. Action by John C. Harper against C. A. Lindskog and W. H. Roddle. From a judgment for plaintiff on a verdict directed by the court, defendants appeal. The facts are stated in the opinion. The officer is not liable for executing a tax warrant valid on its face, whether the act under which it was issued was constitutional on not.

Hoc. A. J, .Plowman, Judge. Action by Olaf Seim against Charles H. Krause. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. When parties capable of contracting have deliberately entered into a written agreement in which by all just rules _of construction, the certificate of the architect is made a condition precedent to a right of action, such condition must be performed or its requirements waived.

Hon. Joseph W. Jones, Judge. Action by H. C. Torrey against Porter P. Peck and. the Minnehaha National Bank impleaded with Peter Gallagher. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. Ownership of personal property is a question to which a witness can testify. Stiener v. Traumn, 13 So. 366; Knapp v. Smith, 27 N. Y. 277; Sweet v. Little, 14 N. Y. 465.

Hon. E. G. Smith, Judge. Action by James H. Stearns, as receiver of the German-American Loan & Trust Company, against Anna P. Wright and others. Judgment ior defendants, and plaintiff appeals. The facts are stated in the opinion. The defendant cannot have a decree against a co-defendant without a cross bill, with proper prayer, and process or answer, as in an original suit.

Appeal irom circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge. Action by Jessie F. Conner against W. H. Corson, W. E. Willey, and others. Judgment ior plaintiff, and defendants Corson and Willey appeal. The facts are stated in the opinion. Judgment on demurrer settles every matter which was well alleged in the pleading of the opposite party.

Hon. Frank B. Smith, Judge. Action by G. W. Pitts and others, co-partners as the Bank of Iowa & Dakota, against John Oliver. Prom an order denying plaintiff’s motion to strike certain paragraphs from defendant’s answer, they appeal. The facts are stated in the opinion. Where a second action between the' same parties is upon a different claim or demand, the judgment in the prior action only applies to the issues controverted.

Hou. LoriN© E. Gappy, Judge. Action by George Meadows and William Meadows against Lorenze Osterkamp and others. Judgment for plaintiffs, and defendant Lorenze Osterkamp appeals. The facts are stated in the opinion. A tax deed regular on its face and properly acknowledged and executed is color of title. Taylor v. Hamilton, 173 Ill. 392; Davis v. Hall, 92 111. 85; Parker v. Vinton, 77 N. W. 1023. Good faith is presumed until controverted.

Hon. Loring E. Gaffy, Judge. Suit by Sarah C. Henderson against Hughes county, the city of Pierre, andP. L. Fuller, as treasurer of .Hughes county. Fron a judgment in favor of defendants and the order denying a motion for a new trial, plaintiff appeals. The facts are stated in the opinion. Where a record is not found in the office, and it is not shown that one was ever in existence, there is no presumption that one was made.

Hon. E. G. Smith, Judge. • Action by Henry A. Muller against Timothy F. Flavin. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. One who alleges that a deed absolute in form was intended as a mortgage only, is required to make strict proof of the fact, and the evidence must be clear, convincing and satisfactory.

Hon. Joseph W. Jones, Judge This case was first decided by this court in an opinion reported in 13 S. D. 550 83 N. W. 588 in which opinion the judgment of the trial court in favor of the plaintiff was affirmed, subsequently appellants petitioned for a rehearing which petition in this opinion is denied.

Hon. Prank B. Smith, Judge. Action 'by Mike Gales against the Bank of Plankinton, a corporation. Prom an order appointing a receiver for defendant, Warren Dye and another, prior attaching creditors of defendant, appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Pennington county. Hon. William Gardner Judge.</p> <p>Action by the Pioneer Press Company against Joseph Gossage to recover on a promissory note. From a judgment for 'defendant, plaintiff appeals.</p>

<p>1. That an appeal was taken before entry of record of an order denying a motion for a new trial is not a sufficient ground for dismissal.</p> <p>2. Where an appeal is taken prior to the perfection of the judgment by filing the judgment roll in the circuit court clerk’s office, it will be dismissed, since the filing of the judgment roll is a condition precedent.</p>

Hon. E. G. Smith, Judge. Action by Leonard Kielbach against the Chicago, Milwaukee & St. Paul Railway Company to recover for stock killed by defendant. From a judgment for plaintiff, defendant appeals. The undisputed evidence in this case fully rebuts the presumption of negligence created by the statute arising from the proof of killing the animal. The question in the case therefore became one of law to be decided by the court. Gay v. Ry. Co., 5 Dak. 514; Huber v. Ry.

Hon. Julian Bennett, Judge. Action by William D. Hale as receiver of the American Savings & Goan Association against Thomas Gullick and others. From a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. When the stock of a mutual building association is paid up, it ceases to be a going concern and its stockholders become creditors entitled to a distribution of its funds.

Hon. Levi McGee, Judge. Action by Sylvester Judd and another against Charles J. Patton. Prom an order vacating a judgment in favor of defendant, and permitting Nathan Nevin to intervene, defendant appeals. The facts are stated in the opinion. Judgments are just as conclusive upon privies to an action as upon the parties themselves. Spear v. Tidball, 58 N. W. 708; Sobey v. Belier, 28 la. 323; Cushing v. Edwards, 68 la. 145; Whitford v. Crooks, 54 Mich. 261.