Volume 13 — Utah Reports

<p>Appeal from the district court of the Third judicial district, Territory of Utah. Hon. S. A. Merritt, Judge.</p> <p>Action by Joseph Krantz against the Rio Grande Western Railway Company. Judgment for plaintiff. Defendant appeals.</p>

Hon. H. W. Smith, Judge. Action by J. D. Gill against Charles Hecht on a contract for the exchange of realty. On motion for new trial the failure of the defendant to make formally any assignment or specification of error was called, upon the' argument, to the attention of the court, who thereupon disregarded the statement, denied the defendant the privilege of amendment, and overruled the motion for a new trial. Defendant appeals.

Hon. W. H. King, Judge. Application for mandamus by the people, on relation of William J. Pace, against James Van Tassel. Demurrer to petition sustained and relator appeals. Reversed. Held: respondent was entitled to a dismissal of the action unless appellant made a deposit of money, or gave an undertaking for the payment of costs adjudged against him. See Comp. Laws 1888, section 3628.

George W. Bartch, Judge. Bill-by Geneva M. Snow against C. Edgar Snow for divorce. Defendant appeals from an order adjudging him guilty of contempt in refusing to pay permanent alimony. Appeal allowed and judgment affirmed. Appeal does not lie from the order adjudging defendant guilty of contempt. People v.' Owens, 8 Utah 20; Claris v. People, 12 Am. Dec. 184, notes; In re Whlttemore, 35 Pac.

<p>TERRITORIAL PROBATE JUDGE — TERM OE OEEIOE.</p> <p>1. The president of the United States appointed defendant probate judge of Salt Lake county on the 13th day of February, 1895, for a term of two years. The state of Utah was admitted to the Union on the 4th day of January, 1896. The defendant contended that by section 9, art. 24, of the constitution of Utah, he was entitled to hold his office as probate judge until the end of the term for which he was appointed. Held, that the government of the state was not a continuation of the territory, and that it was competent for the people of the new state, in their sovereign capacity, to continue in force, or not, the probate courts, or to extend the power and authority of the officers thereof.</p> <p>2. The provision of section 9, art. 24, “And until the expiration of the term of office of the probate judges, such probate judges shall perform the duties now imposed upon them by the laws of the territory,” must be interpreted by the other provisions of the same section, and by those of sections 1 and 7, of article 8, in which the intent to abolish probate courts is clearly shown.</p> <p>3. This manifest intention to dispense with the probate courts, and to give to the district courts jurisdiction in probate matters, leaves the incumbent without an office, and therefore without any authority under the constitution of the new state, after the expiration of the term fixed by the constitution (section 9, art. 24) for the cessation of authority under the territorial government, viz., January 13, 1896.</p>

Hon. S. A. Merritt, Judge. Arthur Pratt against E. H. Parsons. Judgment for plaintiff. Defendant appeals. At common law the lawful jury was composed of 12 jurors and the unanimity of these 12 members in finding a verdict was an essential attribute. 8 Blackstone Commentaries 376; Proff. on Juries, Sec. 77; Cooley’s Cons. Limitations 394.

<p>Appeal from the district court of the Third judicial district, Territory of Utah. Hon. S. A. Merritt, Judge.</p> <p>Action by Mary E. Smith and others against the Salt Lake City Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

'Appeal from the district court of the Third judicial district, Territory of Utah. Hon. S. A. Merritt, Judge. Action by Joseph Dedericks against the Salt Lake City Railroad Company to re coyer damages for an injury caused by an electric car. From a judgment on motion for a nonsuit plaintiff appeals. Cited: Riley v. Rapid Transit Co., 10 Utah 428; Booth’s Street Railway Law § 359; Grand Trunk Railway Co. v. Ives, 144 U. S. 40S ; Jeffs v. R. G. W. Ry.

H. W. Smith, Judge. Action by C. L. Cole against C. Ducheneau. From an order made after final judgment retasing costs and disbursements, plaintiff appeals.

George W. Bartcb, Judge. Mr. Buswell in his work on Limitations, section 42, says: “The law as clearly laid down by the modern authorities may be stated in the following propositions: 1— A debt barred by the statute of limitations may be revived by a new promise. 2 — Such promise may be expressed or implied. 3 — An implied promise is created only by a clear and unqualified acknowledgment, equivalent to a new promise.

Gr. W. Bartch, Judge. Patrick Coughlin was convicted of murder, and appeals. Now, for the purpose of showing that the said arresting party had reasonable ground upon which to make an arrest of the defendant and his companion, the prosecution introduced secondary evidence of the contents, or rather a part of the contents, of a certain telegram sent by one Harrington, sheriff of Summit county, to Thomas Stagg.

Hon. George W. Bartch, Judge. The appellant was indicted for murder in the first degree by the grand jury of the Third judicial district of the Territory of Utah, on the first day of December, 1894. He was tried under said indictment; and on the 19th day of said month the jury found him guilty of mur der in the second degree, with recommendations to mercy.

This was an original petition of Martin Christopherson against Charles E. Stanton, clerk of the county court, for mandamus.

S. A. Merritt, Judge. Action by William Lowe against Salt Lake City for damages sustained by his falling into- a hatchway while crossing the back yard of the city hall at night. From a judgment for plaintiff, defendant appeals. Haying gone where he had no right to go, plaintiff became a trespasser, and cannot recover in this action. 1st Adison on Torts, par. -229, p. 254; Bishop Non-Contract Law, sec. 866; R. & O. R. R. Co. v. Schwindler, 101 Pa.

H. W. Smith, Judge. Action by Joseph Jenkins against the Hooper Irrigation Co., and others, for damages sustained by the negligent use of defendant’s canal, whose waters carried alkali onto the land of plaintiff. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

H. W. Smith, Judge. This was an action on a promissory note dated at Prat-ville, Utah, July 12, 1883, due 60 days after that date, payable at the banking house of Harkness & Co., Ogden, Utah.

Hon. W. H. King, Judge. Action by William Crookston against the Centennial Eureka Mining Company, whose office and place of business was in the Third judicial district. Defendant filed a demurrer and moved for a change of venue from the First judicial district. Demurrer was overruled, and a change of venue denied, and defendant appeals. It is claimed that plaintiff’s counter affidavit (p. 9 of abstract) does not show “merit,” and so is insufficient.

Hon. S. A. Merritt, Judge. Action by Samantha Sullivan, administratrix of Cornelius Sullivan, deceased, against Salt Lake City for damages sustained by the death of plaintiff’s husband while in the employ of defendant. From a judgment for plaintiff defendant appeals. Evidence of specific acts of negligence or carelessness on other occasions than the one in question, are not admissible. Black, Proof and Pleading in accident cases, Secs. 45 and 46; Parker v. Portland Pub.

S. A. Merritt, Judge. Action by William H. Culmer against R. G. Wilson and Belle Wilson, his wife, for contribution for damages paid by plaintiff as joint tort feasor in a case in which he, as naked trustee for Belle Wilson, had been sued jointly with her and with her former husband, by name of Tompkins, for trespass committed by them in the execution of an unlawful judgment, rendered by a United States commissioner who had no jurisdiction in a case brought by plaintiff…

H. W. Smith, Judge. Action by Martha D. Farr against W. R. Swigart and the Consolidated Implement Company for a forcible and malicious trespass upon real estate, and for the conversion of personal property. Judgment for plaintiff. Defendants appeal.

Hon. S. A. Merritt, Judge. Action by Gr. C. Bartels against Annie P. Brain, administratrix, to recover damages for excavations made on land leased to Edward Brain, who by terms of the written lease was to return the premises in as good a condition as when entered upon, reasonable use and wear thereof and damage by the elements excepted. From a judgment for the defendant, plaintiff appeals.

Hon. S. A. Merritt, Judge. The Utah National Bank obtained a judgment against Isaac Sears and another on a promissory note containing a warrant of attorney to confess judgment. The judgment was set aside and the order of reference in supplementary proceeding vacated on motion of the defendants. From the order setting aside the judgment and vacating the order of reference plaintiff appeals.

Hon. S. A. Merritt, Judge. Action of replevin brought by plaintiff against defendant, as sheriff, for the possession of property or for damages. From a judgment in favor of the plaintiff, defendant appeals.. Proof of fraud in plaintiff’s title would certainly tend to destroy his right of possession as against one claiming under a writ of attachment against his grantor. Any proof tending to do that is admissible in evidence, under a denial of plaintiff’s right of possession.

Hon. H. W. Smith, Judge. Action by the Commercial National Bank of Ogden against the United States Savings, Loan and Building Company and others, to quiet title to certain real estate. Certain parties being made oo-defendants on request of defendants, and judgment haying been rendered against defendants, the latter appealed without having served notice o-f appeal on the co-defendants.

Application bj the state, by Charles O. Whittemore, county attorney for Salt Lake county, on the relation of Benjamin T. Lloyd, for a writ of quo warranto against William M. Elliott.

Hon. S. A. Merritt, Judge. The plaintiff entered into a written contract, dated August 1, 1892, with the defendant F. M. Wright, by which the later agreed to erect for it a public school building for $46,500. Upon the completion of the building by Wright there had been paid by plaintiff on said contract all of the contract price but $7,026.67.

Original application for mandamus by Alma S. Kendall, relator, against Albert W. Raybanld, auditor of public accounts of Salt Lake City, to compel the defendant herein to issue a warrant on the city treasurer for money in payment of a salary to which the relator by judgment of the Third judicial district was entitled.

Hon. H. W. Smith, Judge. This case came up for trial on the 14th day of April, 1895. After plaintiff had introduced all his evidence, defendant’s counsel moved for a nonsuit on the ground that the evidence showed that the plaintiff was guilty , of contributory negligence, which caused the injury complained of. The motion was granted and an exception taken. Plaintiff had delivered a load of hay and returned to the public highway when the accident happened.

Hon. H. W. Smith, Judge. Action of replevin by Emma Kaysen against H. E. Steele for a colt or its value. The colt had been taken on a levy of execution by one Munro, appointed in writing as a deputy to defendant herein. The appointment was for the full period of defendant’s term of office as constable, and no bond was given by said Munro for the faithful performance of the duties of his office.

Hon. S. A. Merritt, Judge. Action by the Deseret National Bank against Little, Roundy & Co on certain promissory notes. At the time of entering complaint an attachment issued, and from an order refusing to dissolve the attachment, defendant appeals.

Hon. H. W. Smith, Judge. Action by Philander V. Saunders against the Southern Pacific company for damages sustained by plaintiff while a passenger on defendant's train. From a judgment of nonsuit, plaintiff appeals. The facts are set out in the opinion of the court and. in the opinion of Justice Miner, dissenting.

Hon. S. A. Merritt, Judge. Action by William L. Douglas et al. against George A. Alder et al. Hunt & Holbrook and others intervened. There was a judgment of nonsuit, and from an order overruling a motion for a new trial, plaintiff and interveners appeal.

Hon. W. H. King, Judge. Action by Samuel E. Bunnell against the Rio Grande Western Railway Company for damages sustained through the hilling of a cow by defendant’s train. The facts are set forth in the opinion. From a judgment in favor of plaintiff, defendant appeals. An engineer is not called upon to stop because cattle are near the track or a bridge and may step onto it, or if stopping is more dangerous than proceeding, he may even increase his speed. 13 Eng. and Am. Ry.

Hon. H. W. Smith, Judge. Action by John Hamner against Thomas H. Bailan-tyne. Judgment for plaintiff. Defendant appeals. Held: “An officer sued for taking property may justify by showing an execution against his adversary which is regular upon its face.” Likewise the case of Farley v. Lea, 32 Am. Decs. 680, which was an action of trover by the plaintiff against the sheriff for selling certain property.

Hon. S. A. Merritt, Judge. Action by Clara E. Podlech against Patrick Phelan and another for the conversion of cetrain trade fixtures. From a judgment for plaintiff, defendant appeals. The facts are set forth in the opinion. There is n0 evidence whatever showing that she ever attempted to remove the furniture and fixtures, that she now claims in this suit, from the leased premises during the term of the lease.

Hon. S. A. Merritt, Judge. Action by Marion M. Whitesides against George W. Green, Sr., and others, for damages sustained by the removal of a fence from a highway claimed by Davis county, and to… Held: not as a matter of law that a highway was shown, but that these circumstances should have been submitted to the jury.

Hon. H. W. Smith, Judge. Action by Charles C. Wilson against the Southern Pacific Company for damages sustained by a collision between defendant’s train and a wagon in which plaintiff was riding. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Hon. W. H. King, Judge. Action of ejectment by Harry T. Duke against George C. Griffith. Judgment for defendant. Plaintiff appeals. On January 12, 1891, appellant brought action to recover in ejectment the premises described in the complaint. The appellant claimed title and right of possession and alleged an ouster on the 13th day of August, 1890. The original answer filed by respondent was a simple denial of appellant’s title. Thereafter an amended answer was filed.

Hon. S. A. Merritt, Judge. Action by Bobert C. Chambers against Susan R. Emery, administratrix of Albion R. Emery, deceased, t© enforce a resulting trust. From a judgment for defendant, plaintiff appeals. The burden of proof was on appellant to establish the facts upon which the trust rests by clear and satisfactory evidence. 1 Perry on Trusts, sec. 126.

Hon H. W. Smith, Judge. . Action by Jane English and others against the Southern Pacific Railway Company and the Ogden Union Railway & Depot Company, for damages sustained by the plaintiff by reason of the death of her husband, caused by a passenger train. From a judgment for the plaintiffs, defendants appeal. Modified as to the amount of damages.

Hon. S. A. Merritt, Judge. Action by the Salt Lake Hardware Company against the Tintic Milling Company, and others, to compel payment by the stockholders of the defendant company of a judgment obtained against it by the plaintiff. From an order sustaining a demurrer to the complaint, plaintiff appeals. It is not necessary that execution should issue to any county other than in the county where the judgment was rendered. Embree v. Reeve, 6 Humph.

W. H. King, Judge. Action by Charles Tost against William Tracy and others for false imprisonment. Verdict for plaintiff. Defendant appeals. “There being no absolute, fixed, legal rule of compensation, appelate courts ought not to interfere with the verdict unless it clearly appears that there has been such a mistake of the principles upon which the damages were estimated, or some improper motive or bias indicating passion or prejudice upon the part of the jury.

Hon. W. H. King, Judge. Action by Isaac Voorhees against Manti City for damages sustained by the flooding of plaintiff’s land. From a judgment for plaintiff, defendant appeals.

Action by Alfred G. Brimm, road supervisor, against Thomas W. Jones for damages done to highway contrary to provision made by statute — for prevention of damages to the highway by herds of sheep. The demurrer to the complaint, which raised the constitutionality of the statute, was decided in the supreme court of the Territory in favor of the law.

Hon. W. H. King, Judge. Action by the Strawberry Valley Cattle Company against John I. Chipman for damages sustained by plaintiff in consequence of the trespass of defendant’s sheep upon the land leased by the plaintiff from the Indians on their reservation at Uintah. Damages were asked for and also an injunction to prevent further injury to the grazing lands.

Hon. John A. Street, Judge. This was a proceeding in mandamus, wherein a complaint was filed by a relator, Benjamin T. Lloyd, against defendant to oust the latter from the office of city councilman to which he had been appointed by the city council. A demurrer was interposed and overruled. A judgment was then rendered upon the demurrer in favor of the relator and an appeal was taken therefrom.

Hon. H. H. Eolapp, Judge. Action by D. H. Peery against Heber Wright, sheriff, to compel him to give to plaintiff a certificate or bill of sale of property sold by the sheriff in satisfaction of judgment. The property purchased passed to plaintiff, and the amount credited on the judgment, it not being sufficient to liquidate the same, and consequently no money passed to the sheriff. From a judgment in favor of the plaintiff defendant appeals.

Hon. H. H. Rolapp, Judge. Action by R. H. Whipple against H. H. Henderson for usurpation of office, viz.: That of city attorney of Ogden city. From a judgment on the demurrer in fayor of defendant, plaintiff appeals.

Hon. W. H. King, Judge. Action by the Central Pacific Railroad Company against Hyrum Standing, tax collector of Box Elder county, to restrain defendant by injunction from collecting certain taxes and from selling land to pay said taxes in pursuance of the action of the county court sitting as a board of equalization whereby the taxes of plaintiff herein were raised. From a judgment in favor of the defendant plaintiff appeals.

Hon. H. W. Smith, Judge. Action by the Ivilpatrick-Koch Dry-Goods Company, against E. A. Box. Judgment for plaintiff, and defendant appeals.

H. H. Rolapp, Judge. Quo warranto by the State, by A. J. Weler, county attorney, on information of Richard T. Hume, against Willis L. Beardsley, appointed to the office of city auditor for Ogden City in 1894. On the third Monday in January, 1896, the mayor notified the city council of bis appointment of Bichard. T. Hume to the said office of auditor.

Son, H. H. Eolapp, Judge. Action by the First National Bank of Hailey, Idaho, against Hyrum D. Lewis and others. An appeal was taken from a territorial district court to the Territorial supreme court on an order of the judge, granting a new trial. The supreme court amended the judgment of the court below, which was entered by that court accordingly. From the judgment entered in pursuance of the order of supreme court defendant appeals.

Hon. H. W. Smith, Judge. Action on a contract by John C. Sharp and Charles McBride, partners, against S H. H. Clark and others, receivers of the Union Pacific Railway Company. From a judgment for plaintiffs, defendants appeal. This action was brought to recover damages in consequence of the failure of the defendants to carry 3,729 sheep, upon the Union Pacific Railway, from Milford, Utah, to the city of Omaha, Neb.

Hon. W. H. King, Judge. Action by Salt Lake City et al. against Joseph Colladge et al. to establish the right of plaintiffs to maintain the waters of Utah Lake at certain levels, and to restrain defendants from bringing action against plaintiffs for damage done to lands hooded on the shores of Utah Lake. The decree does not conform to the.facts found, and the evidence is insufficient to support it.

This was an action for libel, tried before Judge Bartch in the Third judicial district court of the territory. The decision was reversed in the territorial supreme court and a rehearing granted by the supreme court of the state. The case is reported in 12 Utah 439 and in 43 P. R. 112. No brief was filed at the rehearing, but briefs are given in full in the former report of the case.