Volume 13 — Wyoming Reports

Joseph L. Stotts, Judge. The action was brought by M. V. Nichols against the Board of the County Commissioners of the! County of Weston and others to set aside a tax sale. From a judgment in favor of the defendants and quieting the title in one of the defendants to the property in controversy, the plaintiff brought error. The material facts are stated 'in the opinion.

David H. Craig, Judge. ■ ■ The material facts are stated in the opinion. ' The administratrix and her co-administrator not having been suspended or removed, the appointment of a special .administrator was void. (Schroeder v. Court, 70 Cal., 343; Pickering v. Wrighting, 47 la., 242 ;.In re Palmer, 117 N. C., i-33-) Defendant in error could not have been appointed administrator generally except upon the request of the widow. 'He' seems to have been appointed at his own request.

Joseph D. Stotts, Judge. The material facts are stated in the opinion. In taking its mortgage the plaintiff in error had a right to rely upon Section 1340, Revised Statutes of 1887, providing for the filing of statements of claims to water rights. It was under no obligation to look for other record as to ditch or water rights belonging to the land covered by its mortgage, and it had no other source of information.

Richard H. Scott, Judge of the First District, presiding. The action was brought by S. Henrietta Carlile-Kent against Abe Frank and Grace E. McKenzie for the specific performance of ah alleged contráct for the sale and conveyance of land, and for damages for the eviction of plaintiff from possession. Judgment went for plaintiff, and defendants brought error. The material facts are stated in the opinion.

Joseph L. Stotts, Judge. J. W. Driskell brought suit against Fred Horton, as County Treasurer and Collector of Taxes of Weston County, to enjoin the collection of a tax levied in said county for the year 1901 against the plaintiff upon cattle. From a judgment in favor of plaintiff defendant brought error. The facts are stated in the opinion.

Joseph L. Stotts, Judge. Habeas corpus for the custody of Ida May Bowman, a minor orphan child. From a judgment in favor of the petitioner, Margaret H. Bowman, the respondents, John A. Jones and Ella Jones, prosecuted error. The material facts are stated in the opinion.

Charles E. Carpenter, Judge. Viola Biggs and Annie E- Trout were charged with and convicted of kidnaping the minor child of the former. They prosecuted error. The facts are stated in the opinion. The child, being less than one month old, was incapable of giving consent to its own removal from the place of its residence or the custody of its actual guardian; therefore such consent must have come from one authorized to give it.

Charles W. Bramel, Judge. appearing specially for the motion. Nothing appears here but the original papers, including the bill of exceptions, and they do not show the date of the rendition of the judgment. This of itself is sufficient to dismiss the cause.

David H. Craig, Judge. On motion to strike’ the bill of exceptions and to dismiss the proceeding in error. for the motion. The record failing ■ to show that time was allowed, or even requested to reduce exceptions to writing, it does not appear that the bill was presented'within the proper time. There being no showing that it’ was presented in time- or properly allowed, it should be stricken from the record.

Charles W. Bramel, Judge. Replevin by Allan D. F. Reynolds against Eli Crumrine and Robert H. Homer, for property previously delivered by the plaintiff to one A. E. Miller under a conditional sale contract, which had not been filed. The plaintiff recovered judgment, and defendants prosecuted proceedings in error. The facts are stated in the opinion.

Richard H. Scott, of the First Judicial District, presiding. The material facts are stated in the opinion. This action was brought not to adjudicate the rights of the parties to the waters in controversy, but to restrain the defendant from interfering with the rights of the plaintiff as adjudicated by the water commissioner ánd superintendent until such time as the proper authorities might adjudge that he was entitled to the same.

Ekror to the District Court, Crook County, Hon. Joseph L. Stotts, Judge. The action was brought by George W. Tutty against J. C. Ryan, A. L. Ripley and J. W. Rogers upon an injunction bond. From a judgment dismissing the action plaintiff prosecuted error. The facts are stated in the opinion.

Ekror to the District Court, Crook Count)', Hon. Joseph L. Stotts, Judge. The action was brought by George. W. Tutty against J. C. Ryan and J. G. Bush. From a judgment dismissing the action plaintiff prosecuted error.

Richard Ii. Scott, Judge. The material facts are stated in the opinion. So far as the matter of residence is concerned, a testator has the right under the laws of this state to nominate anyone he pleases as executor of his estate. The statutes expressly permit a testator to name in his will any person who is a resident or citizen of the United States, and that permission is not limited or qualified in any way.

David H. Craig, Judge. The action was brought by the Columbia Savings and Loan Association against James H. Clause, administrator of the estate of Robert O’Melia, deceased, upon a written contract of the decedent for the payment of money.

Joseph E. Stotts, Judge. This action was brought in the District Court by J. C. Minter against P. S. Gose, R. G. Gose, Thomas Gose, John Berry and A. W. Boyd, to recover damages for a trespass alleged to have been committed by the defendants upon certain lands of plaintiff. The facts are stated in the opinion. The petition states facts sufficient to constitute a cause of action. Sections 3533, 3480, 3481 and 3456 are fully complied with.

Original proceeding for writ of prohibition to restrain further proceedings in the District Court for Albany County under the appointment of a receiver in a proceeding in aid of execution. A demurrer was sustained to the petition. (See State ex rel. Bank v. District Court et al., 12 Wyo., 547.) An amendment to the petition was filed, and a motion by respondents to strike the amendment from the files.

Joseph E. Stotts; Judge. Heard on motion of defendant in error to dismiss, and on motion of plaintiff in error for extension of time to file hriefs. cited, in support of the motion to dismiss, Bank v. Anderson, 5 Wyo., 5x8; Cronkhite v. Bothwell, 3 Wyo., 739; Robertson v. Shorow, 10 Wyo., 368.

Richard H. Scott, Judge. Action by Edward C. David against James R. Whitehead, Elizabeth Wilson and Edwin J. Smalley, as sheriff, to enjoin the foreclosure of a mortgage and the sale of certain real estate alleged to be owned by the plaintiff. The plaintiff claimed under a tax deed. The defendant Wilson claimed under a mortgage executed by her co-defendant Whitehead. Judgment was rendered for defendants, and plaintiff prosecuted error.

Rich■ard H. Scott, Judge. The material facts are stated in the opinion. The ownership and control of the waters of Wyoming are vested in the state. (Const., Art. 8, Sec. 1; id., Art. 1, Sec. 31.) These constitutional provisions are self-operative. They delegate no authority to enlarge or diminish their operation, and the Legislature would be powerless to enact a law divesting the state of its title to or control of its waters.

<p>Appeal and Error — Recokd—Arrangement oe Papers.</p> <p>i. Plaintiff in error having caused the papers composing the record to be rearranged and certified pursuant to the rules, after submission and before decision of a motion to compel the same. Held, (1) that the motion will be treated as confessed, and defendant in error granted time to file briefs on the merits; and, (2), that the failure to complj' with the rules as to arrangement of the papers in the first instance not appearing to have resulted from wilful neglect, but from a misunderstanding of the clerk of the court below, no penalty would be imposed.</p>

Charles W. BramRl, Judge. The material facts are stated in the opinion. The court had no jurisdiction to render the judgment appealed from.

Richard H. Scott, Judge of the First District, presiding. The facts are stated in the opinion. The necessary acts, where there is no organized mining-district, to make a valid lode mining location, are set forth in the Federal Statutes (U. S. Rev. Stat., Secs. 2320, 2324) and in the statutes of the state (R. S. 1899, Secs. 2546, 2548). (Hansworth v. Butcher, 4 Mont., 299; Min. Co. v. Min. Co., 7 Sawy., 96; Stinchfield v. Gillis, 96 Cal., 33; McLaughlin v. Thompson, 2 Colo.

On rehearing. It seems impossible to permit recover}'- by plaintiff below on the $450 note. It makes no difference that the provision for refunding the $550 note is absurd or cannot be enforced as it stands. The parties have so contracted and they must be bound by the terms of the contract, though if unintelligible it cannot be enforced. The parties changed the contract by interlineation, which was studiously done and rendered the contract obscure.

Reserved questions from the District Court, Sheridan Count)’-, Hon. Joseph T^. Stotts, Judge. Heard on motion to discontinue consideration of the reserved questions. appearing for the motion. An examination of the petition will disclose that it wholly fails to state'a cause of action. .In consequence, the questions propounded are purely abstract in character and will not be answered by this court.

Original proceeding in habeas corpus prosecuted on behalf of Charles E. Hollibaugh and Eric Bunten to determine the legality of their imprisonment in the state penitentiary. The facts are stated in the opinion. cited Wartner v. State, 102 Ind., 51; B% parte Carr, 22 Neb., 540; State v. Stephens, 71 Mo., 535; 6 Colo., 559; 7 id., 384; id., 502.

Joseph E. Stotts, Judge. Action .by W. P. Ricketts against E. A. Crewdson, as County Treasurer and Collector of Taxes of the County of Crook, to enjoin the collection of taxes levied against the plaintiff upon real and personal property. A general demurrer was sustained to the petition, and the plaintiff refusing to further plead, judgment was rendered for defendant. The plaintiff prosecuted- a proceeding in error for the review of the judgment.

<p>Courts — Amendment or Record — Entry of Findings Nunc Pro Tunc — Evidence to Authorize Amendment of Record After Term — Appeal and Error — Judgment Without Findings — School Districts — Warrants — Contracts — Power of School Districts to Incur Debts — Limitation on Indebtedness — Act of Congress of July 30, 1886 — Pov'ER of District Board — Ratification by District of Acts of Board — Judgment Against School District.</p> <p>1. It is competent for the court at any time to amend its record that it may conform to the truth and actual facts of the ^ase.</p> <p>2. Where, through an error or misprision of the cleric, the findings made and filed in a cause have been omitted from the journal, the court may after the term order that they be entered mine pro tunc as of the date when they should have been entered.</p> <p>3. Where a judgment rendered July 13, 1899, recited that it was rendered upon findings entered December 21, 1896, and, upon the hearing of a motion filed by plaintiff July 1, 1903, for a nunc pro tunc entry of the findings, it appeared from evidence furnished by the record that the findings had in fact been made, signed by the judge and filed December 21, 1896, but had been omitted from the journal through the error, misprision and omission of the clerk, and, though the original written findings had been lost from the files, the contents thereof were shown by a copy set out in the bill of exceptions which had been allowed and signed before judgment and filed in the cause, and there was no controversy as to the contents; Held, that such findings were properly ordered to be entered mmc pro tunc as of December 21, 1896, the date when they were in fact made and filed.</p> <p>4. Upon a motion for the nunc pro tunc entry of findings alleged to have been omitted from the journal through the error and misprision of the clerk, the bill of exceptions allowed and signed by the trial judge and filed in the cause reciting as a fact the* rendering of decision and the filing of findings on a date stated, and setting the same out at length, was competent evidence that the findings had in fact been made and filed at the time stated, and was sufficient evidence to authorize an amendment of the record, after judgment and after the term, by ordering the findings to be entered nunc pro Umc.</p> <p>5. An appeal from an order directing the nunc pro tunc entry of findings alleged to have been omitted from the journal through the error and misprision of the clerk, does not bring up for review alleged errors in the rulings on the trial of the cause itself or in the findings or judgment.</p> <p>6. There must be a final judgment to authorize a proceeding in error; such a proceeding does not lie upon a verdict or mere findings.</p> <p>7. The rendition of a judgment without a finding to support it is not void, although written findings may have been timely requested; it is a mere irregularity or error for which the judgment may be vacated or reversed upon proper proceedings for that purpose.</p> <p>8. The irregularity or error, if any, in rendering a judgment upon findings not entered, though in fact made and filed, is cured by a subsequent order for the entry of such findings nunc pro tunc as of the proper date before judgment; and the objection that judgment was rendered without finding's is not thereafter available to the complaining party where he made no motion to vacate the judgment, nor instituted proceedings in error for its reversal on that ground until after the nunc pro tunc order.</p> <p>9. The question is discussed, but left undecided, whether the nunc pro tunc entry of findings upon which a judgment had been rendered required the statutory period for taking-proceedings in error for the review of the judgment to be computed from the date of the nunc pro tunc order instead of the date of the judgment.</p> <p>10. A school district warrant against which there is no other valid objection is not rendered invalid by the failure of the clerk to number it and note its issuance in his warrant stubbook, notwithstanding the official custom to number the district warrants consecutively.</p> <p>11. A school district warrant properly signed, and bearing the corporate seal of the district, is prima facie evidence of its validity.</p> <p>12. A school district warrant is not rendered invalid by the mere omission from the minutes of the district board of a record of the presentation, audit and allowance of the claim for which it was issued, and an order for its issuance.</p> <p>13. A school district warrant sued on was signed by the proper officers, and indorsed by the treasurer, showing its presentation to him and its non-payment for want of funds. The warrant was issued in payment for heating equipment for a school house dhly furnished and accepted, under a contract therefor, authorized by the district board, which provided for the issuance of warrants to pay for the same in accordance with a vote of the board to that effect, and three payments had been made upon the warrant by the treasurer with district money. Held, that, in the absence of a contrary showing, it would be presumed from the facts aforesaid that the warrant was regularly ordered issued, and the mere omission of such a direction from the minutes of the board’s proceedings is not sufficient to overcome that presumption.</p> <p>14. As against the defense that a school district warrant sued on was issued in excess of the authorized debt limit of the district, the presumption of validity attaches to the warrant regularly issued until the contrary is satisfactorily established.</p> <p>15. The burden of proof is upon a defendant school district to establish its averment in defense of a suit upon its warrant that the same is void as a debt incurred in excess of the authorized debt limit; it is not the plaintiff’s duty to show the contrary in the first instance.</p> <p>16. The power of municipal corporations, counties and other subdivisions in the territories to become indebted was limited by the act of Congress of July 30, 1886, to foqr per centum on the value of the taxable property therein respectively to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such indebtedness. To pay for a school house heating plant contracted for August 25, 1886, defendant school district on October 30, 1886, issued the warrant sued on. The statute required railroad and telegraph property situated in more than one county to be assessed by the Territorial Board of Equalization upon a valuation per mile, the same to be certified to the county authorities, and the regular taxes levied thereon by the County Board. Certain taxable railroad and telegraph property was admitted to have been situated within the district in 1886, regularly assessed by the Territorial Board, certified to the county authorities, placed on the tax list, and territorial, county and school taxes levied thereon. The regular assessment roll as returned by the assessor and equalized by the County Board did not include such railroad and telegraph assessment, and it was admitted that neither the County Clerk nor Commissioners, as required by law, apportioned such last named assessment among the several school districts, though the actual mileage within the district was also admitted, as well as the value per mile as assessed by the Territorial Board. Held,</p> <p>(x) The act of Congress aforesaid was not a grant of power to incur indebtedness, but was a limitation upon such power.</p> <p>(2) It was incumbent on the defendant district alleging the warrant in suit to be void as issued in violation of said act to prove, the value of the taxable property in the district as shown by the last assessment for territorial and county taxes, which duty would not be complied with by proof of a confessedly partial assessment of such property.</p> <p>(3) Such defease would not be established by proof merely of the value of the taxable property on the roll returned by the County Assessor, it being admitted that it did not include railroad and telegraph property located in the district which had been separately assessed by the Territorial Board as aforesaid.</p> <p>(4) It was not error prejudicial to the district to admit in evidence the assessed value of such railroad and telegraph property, notwithstanding the omis- , sion of the proper county authorities to apportion the assessment among the several school districts; since, yvithout such proof, the value of all the taxable property would admittedly be not shown, and, therefore, there would be no basis for holding the warrant void under the act aforesaid.</p> <p>(5) Admitting the existence of a valuable class of taxable property whose value was not disclosed, its value would be presumed sufficient to bring the debt within the limitation of the act of Congress.</p> <p>(6) Conceding, arguendo, that the assessment of 1885 was the proper test rather than that for 1886, the debt would be presumed to be valid, there being no showing as to the assessment for the former year.</p> <p>(7) The date of the contract obligating the district-must be regarded as the date when the debt was incurred, within the intent of the act, although the warrant in suit was not issued until after-wards.</p> <p>(8) The railroad and telegraph assessment was properly considered in determining' the value of the taxable property in the district, notwithstanding the omission of the cleric and commissioners to apportion such assessment among the several proper school districts, the assessment being otherwise unobjectionable, and there being no showing that the taxes thereon were not paid.</p> <p>(9) Debts incurred subsequent to the date of the contract obligating the district were properly excluded in determining the existing indebtedness of the district.</p> <p>(10)A special tax of $1,500 voted for contingent expenses by the annual school district meeting in May, 1886, might have been anticipated by the District Board in making the contract, as its collection would not occur until later in the year; and such sum was entitled to be deducted from the amount of existing indebtedness, in determining the power to become indebted.</p> <p>(11) A balance remaining in the teacher’s fund might have been available by transfer to the school house fund, if found necessary and ordered by the board, to use in paying for the heating plant contracted for.</p> <p>17. The only recognized school district funds under the statutes as they existed in 1886 were the school house fund and the teachers’ fund.</p> <p>18. Special taxes voted by a school district in 1886 for contingent expenses, or for any purpose other than to supply a deficiency in the teachers’ fund, became, when collected and turned over to the district, a part of the school house fund, though kept separate by -the district officers in what was called the “contingent fund,” no such fund being authorized by law.</p> <p>19. A school district debt for a school house heating plant is properly payable from the school house fund, though a warrant therefor was drawn against “contingent fund,” the latter being a fund not recognized by law; and such warrant should be treated as drawn against the proper fund for its payment.</p> <p>20. The authorized delegation of all the powers of the annual school district meeting to the District Board would empower the latter to sell and dispose of unused and abandoned school property and direct the application of the proceeds, and where there was property of that nature worth $2,200, a balance of $1,383.36 in the teachers’ fund presumably intact when the contract in question was made, and transferable by the board to school house fund, and a special tax to be subsequently collected of $1,500, as against $1,149 of outstanding warrants, there would have been the sum of $3,934.36 of possible available funds out of which to pay the contracted indebtedness of August 25, 1886, amounting to $2,650. Therefore, held, that the objection that the contract was void as involving an expenditure beyond the appropriation for that purpose was not upon the facts well taken.</p> <p>21. The fact that, subsequent to the contract alleged to' have been void as in excess of available funds, the board bought furniture for the school house cannot operate to avoid the contract for the heating plant under which the warrant in suit was issued.</p> <p>22. In the absence of any provision of law prohibiting a school district from contracting a debt in excess of the revenue or taxes for the current year, it has authority to incur a reasonable debt for a legitimate and necessary purpose; and where a new school building had been erected at a cost of $25,000 under express legislative authority, its equipment with a steam heating plant at a cost of $2,650 was neither an unreasonable nor extravagant expenditure.</p> <p>23. A school district having erected a new school building at a cost of $25,000 under express legislative authority, it had power to provide a steam heating plant therefor costing $2,650, and, as incident to such power, it had power to incur the debt for such plant, the same being reasonable, and there being no provision of law prohibiting such debt, either expressly or by necessary implication; and the District Board became vested with the complete power of the district in the premises under the authorized delegation of the powers of the latter to the board by vote of the district electors at the annual meeting.</p> <p>24. The building committee appointed by legislative act to supervise the erection of the school house having asked for separate bids for the heating plant in their advertisement for bids for the construction of the building, and received thereunder the bid of the party to whom the contract for heating plant was afterward awarded by the board, such advertisement was a sufficient compliance with the general statute requiring the board to advertise for bids for any repairs, addition or improvements to school property costing more than $200; so that it was not incumbent on the board to again advertise for bids.</p> <p>25. Where a school district might originally have authorized the incurring of a debt in the purchase of equipment for a school house, it may ratify such debt when incurred by the District Board; and the action taken at the regular annual meeting in 1890 ot defendant school district in voting a special tax of $2,000 for contingent ex-penses, and expressly voting that $1,000 thereof should be applied upon existing indebtedness, amounted to a ratification of the debt sued on which had been incurred by the board in 1886, no other existing indebtedness at the date of such meeting-being disclosed, except bonded indebtedness which was otherwise provided for.</p> <p>26. The fact that school district property cannot be reached or sold on execution does not prevent the rendition of a general judgment against the district upon a valid debt.</p> <p>27. A general judgment may be rendered against a school district upon a valid warrant of the district payable from the school house fund, which is a continuous fund, and is capable of being replenished when tempoi'arily exhausted by a transfer from another regular fund or by annual taxation.</p>

David H. Craig, Judge. Replevin by the Studebaker Brothers Company of Utah, a corporation, against Frank A. Mau. From a judgment for defendant the plaintiff brought error. The facts are stated in the opinion. Where property is delivered under a conditional sale contract in Utah, where the contract is not required to be recorded, the vendor has the right to follow and take possession of his property wherever it may be found.

David H. Craig, Judge. The facts are stated in the opinion. The District Court and the judge thereof were without power or jurisdiction to make any order for the sale of the land in controvers)', or to confirm the sale and direct a deed to the purchaser. The orders of the court in the premises were, therefore, void and of no effect, and the administrator’s deed is a nullity and may, therefore, lie collaterally attacked.

Joseph L. Stotts, Judge. Mandamus to compel the issuance to relator of certain refunding water bonds of the town of Sheridan. Heard on motion to dismiss proceedings in error. The facts are stated in the opinion. Though the Mayor and Council are named as defendants, the proceeding is against the city and does not assume the character of a proceeding against the individuals unless it becomes necessary to issue an attachment.

Election contest brought by Adah M. Turner against Ma)' Hamilton, the parties having been opposing candidates for the office of County Superintendent of Schools. A demurrer was sustained to the petition, and again to an amended petition, and thereupon judgment was rendered against the plaintiff, who instituted a proceeding in error. The facts are stated in the opinion.

David H. Cra eg, Judge. This was a proceeding- in the District Court, sitting in probate, upon the application of the executors named in the will of Chauncey B. Tilton, deceased, for letters testa-mentar}^, and a counter application of William E. Tilton, a son of the testator, for letters of administration with the will annexed. The application of William E. Tilton was granted, and he was appointed administrator with the will annexed.

Joseph L. Stotts, Judge. Replevin. The facts are stated in the opinion. Civil actions before justices of the peace must be commenced by summons or by appearance and agreement of the parties without summons. (R. S. 1899, Sec. 4331.) In the absence of a summons or the submission by pleading, there is no action and there can be no judgment.

Charlas W. Brambl, Judge. Heard on motion of plaintiff in error for leave to withdraw the record, for the purpose of applying to the court 'below to amend the bill of exceptions. The proposed amendment will state facts, and will agree with the journal entry, a transcript of which is on file in this court. It would appear, therefore, that if there can be a proper case for amendment of this kind, the present case meets every requirement.

Joseph D. Stotts, Judge. Action to recover possession of certain real estate situated in Crook County. Plaintiff claimed under a sheriff’s deed upon foreclosure of a mortgage. Defendant claimed under a tax deed. The material facts are stated in the opinion. The reservation of a ruling upon the admission of evidence is not approved by the courts.

Ciiarlks W. Bramiíl, Judge. Action to foreclose a mortgage by .H. Julius Conraclt against William Lepper. From a judgment in favor of defendant the plaintiff brought error. The facts are stated in the opinion.

Rici-i-akd H. Scott, Judge. Suit brought by the Town of Hartville in support of an adverse claim against the issuance of a patent for a mining claim. The plaintiff claimed under a townsite patent. The material facts are stated in the opinion. When it is necessary to allege certain ultimate facts in a pleading, they must be proven by proper evidence.

<p>Appeal and Error — Failure to Serve Briefs Upon Attorney General in Criminal Cases — Insufficient Excuse — Dismissal.</p> <p>1. A proceeding in error in a criminal case will be dismissed for failure to serve the brief of plaintiff in error upon the Attorney General as required by the rules of the court; the Attorney General representing the State in this court, and the statute requiring him to be served with summons in error.</p> <p>2. That the failure to serve the Attorney General with the brief of plaintiff in error in a criminal case was caused through the inadvertence and mistake of counsel, and not from, wilful neglect, is not sufficient excuse to avoid the penalty of dismissal.</p>

Joseph E- Stotts, Judge. Heard on motion to strike the bill of exceptions from the files and ^dismiss the proceeding in. error. The facts are stated'in the opinion. for the motion. The filing of a motion for a new trial in the office of the clerk of court of Sheridan County was not a compli-anee with Section 3748, prescribing the time for filing such a motion, as the cause was'not pending in that-county.