Volume 14 — Arizona Reports

<p>WRIT OF ERROR from the District Court of the Second Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal and Error—Bonds—Sufficiency.—An appeal bond, reciting that it is in a sum fixed as the probable cost by the elerk, is insufficient under Revised Statutes of 1901, paragraph 1506, requiring appellant to file a bond in a sum at least double the probable amount uf the costs of the suit, both in the appellate court and the court below.</p>

<p>Appeal and Error—Matters Reviewable.—The question of whether the plaintiff had a right to amend his original complaint, and as to the effect of such amendment, if made, was not involved in the appeal from a judgment for the defendant for costs, in an action for injury to animals by a train, where the defendant filed in the trial court a plea in abatement, denying ownership or interest in the railroad or its operation, and the plaintiff admitted the faets stated in such plea.</p>

<p>Criminal Law—Appeal and Error.—The supreme court will examine the record in a criminal ease, though there is no abstract of the record, brief, or assignment of errors filed, and no particular specification of any prejudicial error.</p>

<p>Original application for certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Original application for certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Jurisdiction of Appellate Court—Bond on Appeal.—To confer jurisdiction on the appellate court, appellant must file the bond on appeal within twenty days after adjournment of the term at which the judgment was rendered.</p> <p>2. Appeal and Error—Ineffective Appeal—Dismissal—Subsequent Writ of Error.—Where a party undertaking to appeal from an adverse judgment filed a record complete except that the bond on appeal was not filed in time, and the appeal on his motion was dismissed without prejudice, and on the following day appellee filed a motion to dismiss the appeal, and appellant filed a petition for writ of error and caused summons to be issued and served on appellee, and appellant occasioned no unnecessary delay by pursuing the two methods to review the judgment, the writ of error would not be dismissed.</p> <p>3. Corporations—Officers—Powers.—Where the articles of incorporation provide that the affairs and business of the corporation shall be conducted and controlled by a board of directors, the president and secretary may not dispose of all the property, in the absence of authority conferred by the stockholders.</p> <p>4. Corporations—Officers—Powers.—A contract executed by the president and secretary of a corporation, without authority from the stockholders, which provides for the disposition of all the propierty of the corporation to the other party thereto, and a subsequent contract executed by the same officers, which stipulates for the employment of the transferee for a monthly salary, and which declares that in case of nonperformance by the corporation of its part of the contract it shall deliver to the transferee a new contract for an option to purchase all the property of the corporation, are not enforceable except to the extent that the transferee may recover the stipulated salary for services actually performed under the subsequent contract.</p> <p>5. Contracts—Mutuality.—A contract of employment, though in its inception lacking the mutuality to constitute a valid contract, is binding in so far as it has been performed by the employee.</p> <p>8. Corporations—Contract of Employment—Authority of Officers. The president and secretary in the active control of the business of a corporation may employ the necessary help to carry it on.</p> <p>7. Master and Servant—Breach op Contract—-Measure op Damages.-—Where an employee for a year at a monthly salary was wrongfully. discharged after he had rendered services for a part of the year, and he treated the contract as an existing contract for salary earned, he could recover the salary specified for the services actually performed; but he could not recover the specified salary during the period after his discharge up to the time of the commencement of the action.</p> <p>8. Master and Servant—Breach op Contract—Measure op Damages. An employee wrongfully discharged from service must accept employment elsewhere if obtainable, and he cannot recover the stipulated salary subsequent to his discharge on the theory of constructive service.</p>

<p>1. Appeal and Error—Findings—Evidence.—The rule that findings of the trial court on conflicting evidence will not be disturbed on appeal does not apply where there is a substantial failure of the evidence to support the findings.</p> <p>2. Divorce—Jurisdiction—Eesidence—“Actual Bona Fide Eesident.” “An actual bona fide resident,” within Eevised Statutes of 1901, paragraph 3114, providing that no suit for divorce shall be maintained unless the plaintiff has been an actual bona fide resident of the territory for one year, is a person who is in Arizona to reside permanently with no idea of having or seeking a permanent home elsewhere.</p> <p>3. Divorce—Jurisdiction—Domicile of Parties—Husband and Wife. While, as a rule, the domicile of a wife is that of her husband, yet where she is forced to leave him for any cause sufficient as ground for divorce, she may establish a separate domicile for herself.</p> <p>4. Divorce—Jurisdiction—Residence—“Actual Bona Fide Resident.” Mere quarrels between spouses in which both were partly at fault, and after which they continued to reside under the same roof, there being no physical violence nor any serious mental distress, were not such cruelty as justified the wife in abandoning her home in Texas and establishing a separate domicile in Arizona, so that she did not, by remaining in Arizona more than one year, acquire an “actual bona fide residence,” within the meaning of Revised Statutes of 1901, paragraph 3114, making a year’s residence a condition to the maintenance of an action for divorce.</p> <p>5. Divorce—Grounds.—Sporadic quarrels or disagreement between spouses, in which both are equally guilty, are not grounds for divorce.</p>

<p>1. Master and Servant—Employment Contract—Termination— Death of Employer.—Where the work to be done under an employment eontraet at a stipulated monthly salary was merely the annual assessment work required by law upon twelve mining claims, together with the care of the camp and other property, and was not to be done under the personal supervision of the employer, the contract was binding on the employer’s estate, and was not terminated by his death.</p> <p>2. Master and Servant—Employment Contract—Termination— Death of Employer.—A contract employing plaintiff to do certain work upon property taken into his possession is not terminated at the death of the employer by Civil Code 1901, paragraph 1825, which provides that the executor or administrator must take into his possession all the decedent’s estate; the possession of the employee being that of the employer, and, after his death, that of his administrator.</p>

<p>Original application for mandamus. Writ issued as to appeal of Frederick C. Bolen only.</p> <p>The facts are stated in the opinion.</p>

Doe, Judge. STATEMENT OF FACTS BY THE COURT. This action is to recover the price of goods, wares and mining machinery, alleged to have been sold and delivered by the plaintiff to the defendant.

<p>3L Appeal and Error—Review—Law op the Case.—A former decision' of the supreme court in the same case is the law of the case on all questions raised and decided.</p> <p>2. Bankruptcy — Enforcement of Liens — Jurisdiction of State Courts.—Where a landlord’s lien for rent on his tenant’s property was acquired when the term commenced, more than four months before the tenant was adjudicated a bankrupt, 'the courts of this state had jurisdiction to enforce such lien' regardless of the bankruptcy proceedings, the institution of a suit for that purpose constituting a sufficient possession of the property to confer jurisdiction, and hence a plea by a defendant that his purchase of the property from the tenant’s assignee was subsequently confirmed by the trustee in bankruptcy by order of the referee was not a defense, where it did not appear that the bankruptcy court ever had possession of the property.</p> <p>S. Landlord and Tenant—Lien for Kent—Enforcement—-Parties. Where, after a tenant assigned his stock of goods and the assignee sold them to a third person, the landlord commenced an action to enforce his lien for rent against the goods, the tenant, no longer having an interest therein, was not a necessary party, and the failure to serve him with process did not require a dismissal of the action.</p> <p>4. Trial—Evidence—Preliminary Proof.—In an action to enforce a landlord’s lien for rent against goods of the tenant which had been sold to a third party who had no actual knowledge of the lease, the admission of the lease for the purpose of proving the term and the amount of rent lienable in the event that notiee of the existence of the relation of landlord and tenant should be shown was not error.</p> <p>5. Landlord and Tenant—Lien for Bent—Bights .and Liabilities of Purchasers.—Where a purchaser of a stock of merchandise from an assignee knew that the assignor was a tenant occupying a rented building, but made no inquiry of the landlord as to the terms of the tenancy, he was conclusively presumed to know of the landlord’s rights, and could not defend the- action to enforce a lien for the rent on the ground that he had no notiee of such rights.</p> <p>6. Landlord and Tenant—Enforcement of Lien for Bent—Evidence.—Evidence that a purchaser of goods from a tenant’s assignee made inquiry of members of the bar as to the assignee’s right to sell them free from liens was inadmissible in an aetion by the landlord to enforce his lien for rent.</p>

<p>Criminal Law—-Appeal—Appearance.—On appeal by one convicted of manslaughter, the court must inquire into the ease and decide it on the merits, as though it had been argued, though the appellant makes no appearance.</p>

E. W. Lewis, Judge. STATEMENT OP PACTS BY THE COURT. This action grows out of the following facts: The appellant, Webster Brothers Milling Company, an Arizona corporation, was engaged in the business of general milling and the buying and selling of grain and hay at Thatcher, Arizona, during the month of June, 1910, and for some years prior thereto.

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

Fletcher M. Doan, Judge. STATEMENT OP PACTS BY THE COURT. This action was brought by appellees to quiet their title to thirteen mining claims situated in California mining district, Cochise county. Held: and assert for that reason the note and trust deed were illegal and void.

WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge. STATEMENT OF FACTS BY THE COURT.

<p>WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the Counts'- of Pima. John H. Campbell, Judge.</p>

<p>WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>"WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OF ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the Pirst Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WRIT OP ERROR from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>WBIT OF EBBOB from the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion. .</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

Edward Kent, Judge. STATEMENT OE PACTS BY THE COURT. The appellee brought his action in the lower court against the appellant, alleging that, in the month of June, 1909. he entered into a verbal contract with the defendant to act as manager of defendant’s mercantile business and general merchandising store in the city of Phoenix for the period between the fifteenth day of October, 1909, and the 15th of October, 1910; the appellant (defendant below) agreeing to pay as…

Original application by the State of Arizona, on the relation of Anna F. Young and others, for mandamus against the Superior Court of the County of Pima, William F. Cooper presiding. The facts are stated in the opinion.

<p>Original application by the Valley Bank of Phoenix for a writ of mandamxis against David P. Johnson, State Treasurer.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Larceny—Intent—Necessity.—The taking by one of the property of another, openly and under an honest, though groundless, claim of right, is not larceny because of the absence of the felonious intent.</p> <p>2. Larceny—Felonious Intent—Question for Jury.—Whether the taking by one of the property of another \was a taking under an honest, though groundless, claim of right, is for the. jury, and, where the jury is in doubt as to motive in' the taking, accused' must be acquitted.</p> <p>3. Larceny—Felonious Intent—Question for Jury.—Where, on a trial for larceny, the theory of the prosecution was that accused took money feloniously with intent to steal, and that his claim that he took it for rent was as a pretext, the court must submit to the jury the question of intent. ^</p>

<p>APPEAL from a judgment of tlie District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe, Judge.</p> <p>The facts are stated iu the opinion.</p>

<p>Criminal Law — Review — Objections to Grand Jury—Motion in Arrest.—Under Penal Code of 1901, section 797, which provides •that an accused person can objeet to a grand jury panel or to an individual grand juror in no other mode than by challenge, it is too late, after plea of not guilty and trial upon the merits, to question the legality of the organization of the grand jury by motion in arrest of judgment.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

Edward Kent, Judge. STATEMENT OF FACTS BY THE COURT. Held: as aforesaid, at, against, and upon the body and person of the said Jesus M. Bodriquez, and thereby, and by thus striking the said Jesus M. Bodriquez with one of said leaden bullets, inflict on, in, and upon the body and person of her, -the said Jesus M. Bodriquez, a mortal wound, of which said mortal wound she, the said Jesus M.…

Edward Kent, Judge. STATEMENT OP PACTS BY THE COUET. This is an action brought by appellee, Samuel F. Bayless, the father of two children of school age, residing in school district No. 1 of Maricopa county, against the school board, to restrain them from enforcing the compulsory attendance school law as against appellee’s children.

J. C. Phillips, Judge. Application by thé State of Arizona, on relation of H. A. Davis, for injunction against Sidney P. Osborne, Secretary of State. Judgment for defendant, and plaintiff appeals. The facts are stated in the opinion.

<p>1. Limitation op Actions—Pleadings—Amended Pleadings—New Cause op Action.—Where a complaint has been held obnoxious to a general demurrer, and an amended complaint is filed to which the bar of limitations is pleaded, and at the time of the filing of the amended complaint the bar of the statute is complete unless the amendment relates back, the court must ascertain whether the facts alleged in the original complaint are sufficient, when considered in the light of the facts pleaded in the amended complaint, to show that the amendment is but the perfected statement of the cause of action originally attempted to be pleaded, and is not the statement of a new or different cause of action.</p> <p>2. Limitation of Actions—Effect of Statute of Limitations.—The statute of limitations, though a statute of repose, does not prevent trials where litigants have moved diligently, though erroneously.</p> <p>3. Limitation of Actions—Pleadings—Amended Pleadings—New Cause of Action.—Where the amended complaint is but an elaboration of detail and an amplification of the cause of action imperfectly stated in the original complaint, and does not state a new or different cause of action, it relates hack to the time of the filing of the original complaint filed before the running of limitations, and the defense of limitations is not available as against the amended complaint, though filed after the running of limitations.</p>

Edward M. Doe, Judge. STATEMENT OF FACTS BY THE COURT. This is an action to quiet title to certain mining claims. Peachy was the plaintiff, and Gaddis and others were defendants below.

F. 0. Smith, Judge. Application for writ of mandamus by the state, on the relation of the attorney general, against-the board of supervisors of Yavapai county. From an order sustaining the motion to quash the writ and sustaining a demurrer to the petition and dismissing the proceeding, the state appeals.

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Counties—Claims Against—Time eor Presentation.—Under Civil Code of 1901, paragraph 989, providing that every person having a claim against any county with certain exceptions shall, within six months after the last item of the account accrues, present a demand therefor in writing to the board of supervisors, and paragraph 993 providing that the board of supervisors must not hear or consider any claim unless an account properly made out and verified is presented within six months, where such a demand is presented after the period of six months is past the board of supervisors has no jurisdiction except to reject the claim.</p> <p>2. Counties—Claims Against—Time por Presentation—“Salary”— “Fees.”—A clerk of the district court was given a stated salary, together with fees paid in civil actions by the litigants and in nearly all criminal actions by the county. When a demand for fees was presented to the board of supervisors, it was necessary to cheek every item and deduct erroneous charges, and extrinsic evidence was sometimes necessary to determine the correctness of particular items. Held, that a claim of such elerk against a county for fees in actions brought for the collection of delinquent taxes was not a claim for a “salary” within Civil Code of 1901, paragraph 989, requiring the presentation of claims against the county within six months, but providing that this requirement shall not apply to claims for official salaries made demand against the county •by some express provision of law; the words “salary” and “fees” having their ordinary signification, the distinction between which is that a salary is a fixed compensation for regular work, while fees are compensation for particular services rendered at irregular periods, payable at the time the services are rendered.</p> <p>3. Counties — Claims Against—Time fob Presentation — “Law of Limitation.”—The provision of Civil Code of 1901, paragraph 989, requiring claims against counties to be presented within six months, is not a ‘Taw of limitation” within Civil Code of 1901, paragraph 2968, providing that laws of limitation shall not be available in any suit unless specially pleaded as a defense, but is a special statutory limitation of the essence of the right created, and the lapse of which not only bars the remedy but extinguishes the right.</p> <p>4. Counties—Claims Against—Time for Presentation—“Accrues.”— Within Civil Code of 1901, paragraph 989, requiring claims against counties to be presented within six monthq after the last item of the account accrues, the last item of the account “accrues” at the time such last item of service is performed, and the six months’ limitation runs from that time, and not from the time when a demand is made for allowance of such account.</p> <p>5. Counties—Claims Against—Statutory Provisions—Applicability. A clerk of a district court, in seeking to establish and enforce a claim for fees against a county, must comply with Civil Code of 1901, paragraphs 953-1048, relative to such claims, even though such fees are due him under an act of Congress.</p>

E. W. Lewis, Judge. STATEMENT OF FACTS BY THE COURT. The appellant was indicted by the grand jury of the county of Gila for the murder of Charles S. Woods, alleged to have been committed on January 9, 1910. He was convicted of murder of the first degree, with the death penalty affixed, and sentenced accordingly. From the judgment of conviction, and from an order overruling his motion for a new trial, he appeals.

<p>APPEAL from a judgment of the Superior Court of the «County of Yuma. Frank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Prank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Eight to Appeal.'—The right to appeal depends entirely on express statutory enactment, and does not exist where the statute does not confer it.</p> <p>2. Appeal and Error—Judgments Appealable—Order Subsequent to Judgment.—Civil Code of 1901, paragraph 1214, provides for an appeal from a judgment refusing a new trial or granting a motion in arrest of judgment; from an order affeeting a substantial right, made in an action when it in effect determines the action and prevents judgment from which an appeal might be taken; from a final order affecting a substantial right made in special proceedings or on a summary application in any action after judgment; or from an order or judgment in habeas corpus. Held, not to authorize an appeal from an order requiring a commissioner who had been appointed to enforce a judgment in favor of defendant to proceed to perform his duties, and execute the judgment pending an appeal without supersedeas.</p> <p>3. Mortgages—Purchaser op Mortgaged Property—Eights—Equity. A purchaser of mortgaged property attempting to pay the mortgage with interest was evaded by the mortgagee, who procured title in himself in bad faith by foreclosure in order to defeat the title of the purchaser, and canceled the mortgage of record, whereupon the purchaser brought suit to quiet title in him. Held that, under the maxim that he who asks equity must do equity, the purchaser was only entitled to judgment on condition that he pay the mortgage debt, attorneys’ fees, and interest from a date specified in the stipulation; the court having no authority to grant interest prior to that date.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. ■ Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Rehearing—Scope.—A ease found pending under an order for a rehearing, made by the supreme court before the territory became a state, not clearly showing on which of the grounds urged it was based, will be considered as if the rehearing was granted generally on its merits as though it had never been considered further than to settle a question of practice not going to the merits.</p> <p>2. Trial—Directing Verdict.—Directing verdict for defendant was error, if, on any theory of the case made by the evidence under the pleadings, plaintiff would have been entitled to a verdict.</p> <p>3. Trial—Directing Verdict—Question Raised.—Motion to direct a verdict does not question the sufficiency of the pleadings, but raises merely the question of the legal sufficiency of the evidence to sustain a verdict against the moving party.</p> <p>4. Waters and Watercourses—Surface Water—Diversion.—Where surface water from surrounding country passed in its natural course, not over, but by, plaintiff’s land on either side, and when beyond it was intercepted by the embankment of defendant’s railroad, it not having constructed enough or sufficient culverts to let pass through it the waters reasonably to be expected, and it there accumulated till it was cast back on plaintiff’s higher land, defendant was liable.</p>

<p>I. Appeal and Error—Presentation Below.—The supreme court i® bound by the record made in the trial court.</p> <p>2. Elections — Contest—Sufficiency of Evidence.—In an election-contest in which it was claimed that the order designating the place of election to be held in a “building” belonging to the named company, which owned a number of buildings, was ambiguous evidence held to show that the voters of the precinct understood that any convenient building belonging to the company could be selected by the board of supervisors.</p> <p>3. Elections—Polling Places—Designation—Ambiguous Order.— Even though an order requiring an election to be held in the “C-Mining Company’s 'building” was ambiguous, where that company-owned a number of buildings in the preeinet, if the election was held without fraud in a building owned by such company, and every legal voter in the precinct voted there, the election cannot be declared illegal because of the ambiguity in the order designating the polling plaee.</p> <p>4. Elections—Polling Places—Change.—If the building designated-in the order of the board of supervisors as the polling place of at precinct was not available for that purpose on election day, the-election officers could hold the election in another available voting: plaee in the precinct.</p> <p>5. Elections—Delay in Opening—Defect.—Where the failure to open. the polls earlier than between 9:30 and 11:30 A. M. was beeausethe election supplies had not arrived, and there were not sufficient electors to organize the election board, and no legal voter was prevented from voting by sueh delay, it would not require the vote of the precinct to be thrown out.</p> <p>6. Elections—Time and Place — Statutory Begulations.—Whether statutes relating to time and plaee of elections are to be considered mandatory or directory, a departure therefrom will invalidate the election only when it makes it impossible or very difficult to determine whether fraud was committed or anything done which would: affect the result.</p>

<p>Counties—Officers—Qualifications — Constitutional Provisions.— Under constitution, article 7, section 2, prescribing the qualifications of an elector, and section 15 requiring every officer to be a qualified elector of tbe county to hold office in the eounty, a qualified elector of the county under the constitution is eligible to hold a county office, though he does not possess the qualifications prescribed by the enabling act (Act June 20, 1910, c. 310, 36 Stat. 557), which, in prescribing qualifications to hold office, is superseded by the constitution.</p>

<p>APPEAL from a judgment of the Superior Court, of the County of Pima. William F. Cooper, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Building and Loan Associations—Loans—Assignability op Debt. Where a note given by a member of a building and loan association for the amount of a loan was payable’to the association or its order, and the deed of trust given to secure it .provided for payment to the association, its successors, or assigns, the debt was assignable by the association.</p> <p>2. Corporations—Ultra Vires—Availability as Defense.—Where a member of a building and loan association has had the benefit of a loan from the association, he cannot resist payment to another association to whom the debt has been assigned on the ground of defects in its organization or want of power to take the assignment, since the doctrine of ultra vires will not be allowed where it would not advance justice, but would accomplish a legal wrong.</p> <p>3. Parties—“Real Party in Interest”—Assignees.—An assignee of a note given to a building and loan association by a member was the real party in interest within the statute requiring actions to be brought in the name of the real party in interest, even though by such assignment it did not become the owner of the note.</p> <p>i. Reference—Grounds—Consent to Reference.—It was not error to appoint a referee to state an account in an action where the parties stipulated that the case be referred.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

W. F. Cooper, Judge. STATEMENT OP PACTS BY THE COUET. The appellant was jointly indicted with Tom Lowe, charging them with burglary in the first degree, and, on appellant’s motion, was separately tried and convicted as charged, and was sentenced to serve fifteen years in prison. A motion for a new trial was made upon the grounds of the absence of a material witness; that the verdict is contrary to law; that the verdict is not supported by the evidence; and other grounds.

<p>1. Adverse Possession—Three-tear Statute—Title.—The three-year statute of limitation did not apply where defendants failed to show a title from or under the sovereignty of the soil, either regular or irregular.</p> <p>2. Adverse Possession — Public Land Grant—Commencement of Limitations—Patent.—Plaintiff deraigned title to land in controversy from the Mexican government by grant dated May 15, 1824. The land was a part of the Gadsden purchase, and was a complete and perfect grant before the date. of the purchase on December 30, 1879. The owner filed in the office of the United States surveyor general for the territory of Arizona his petition for confirmation, as provided by Act Cong. June 22, 1854, chapter 103, section 8, 10 Stat. 309, and Act Cong. July 15; 1879, chapter 292, 16 Stat. 291, and on January 14, 1880, the surveyor general reported the grant to Congress, and recommended its confirmation. Congress failed to act on the report, and on March 3, 1891, created the court of private land claims, and conferred on it jurisdiction to hear and determine questions of the existence, boundaries, and extent of private grants in New Mexico and Arizona. In September, 1892, the United States instituted a suit in such court against plaintiff to have the title to the grant settled and determined and the extent of the boundaries adjudicated, and in October, 1897, the grant was held valid to the extent of a part only of the area claimed, on which judgment the court of land claims, on April 12, 1904, entered an order approving the survey of the grant under direction of the Secretary of the Interior, and on October 29, 1906, a patent was issued by the United States to the original grantee, his heirs and assigns. Held, that limitations did not begin to run against the holder of the grant or his assigns'prior to the issuance of the patent.</p>

<p>1. Injunction—Objection to Relief—Adequacy of Legal Remedy— Injunction will not lie to restrain the enforcement, on the ground of its invalidity, of an ordinance requiring fire insurance agents to pay a quarterly license before transacting business, and prescribing penalties for its violation, as upon a violation of its terms an arrest and trial of the transgressor, with appeals to the superior and supreme courts will provide a plain, speedy, and adequate remedy for the determination of such validity.</p> <p>2. Equity—Jurisdiction—Adequacy of Legal Remedy.—There is no presumption that courts of law will decide a matter incorrectly which will warrant equity in assuming jurisdiction, as the presumption is that every court will decide questions presented for determination properly and conduct the proceedings fairly and impartially.</p> <p>3. Injunction—Determining Validity of Ordinance—Jurisdiction— Preventing Multiplicity of Suits.—Equity will not interfere to determine by injunction the validity of an ordinance imposing a license on fire insurance agents on the ground that it will prevent a multiplicity of suits.</p> <p>4. Injunction—Determining Validity of Ordinance—Jurisdiction— Preventing Infringement of Property Eight.—Equity will restrain the enforcement of a criminal ordinance where an arrest thereunder would be illegal and despoil the person arrested of his property or other rights, but, as insurance agents have no vested property right in their agency, injunction will not lie on that ground to restrain the enforcement of a penal ordinance requiring sueh agents to pay a quarterly license before transacting any business.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge.</p> <p>The facts are stated in the opinion.</p>

Edward Kent, Judge. STATEMENT OF FACTS BY THE COURT. This action was brought by the plaintiff, as administratrix of the estate of her deceased husband, to recover damages on account of injuries received by him from the negligent acts of the defendant resulting in his death.

E. W. Lewis, Judge. STATEMENT OF FACTS BY THE COURT. The appellant was indicted by the grand jury of Gila county on the fourteenth day of December, 1911, charged with the murder of Edward Giles, and was tried upon the indictment in the district court of the fifth judicial district of the territory of Arizona, in and for said county.

<p>1. Payment—Trial Question for Jury—Evidence of Payment.— In an aetion gn an aeeount, where the defense was payment, held, on the evidence, that whether the aeeount had been paid was for the jury.</p> <p>2. Novation—Assumption by Third Person—Effect.—The assumption of a debt by a third party does not relieve the original debtor from liability to the creditor, although the creditor has notice of such assumption, unless the creditor expressly agrees with the debtor to release him.</p> <p>3. Trial—Requested Instructions Covered by Instructions Given. In an action on an account, where the defense was that a third party had assumed and paid the debt, requested instructions that, when one assumes and agrees to pay the debt of another, both are liable to the creditor in the absence of an agreement to relieve the original debtor, and that the creditor may eolleet from either or both, and that an effort made by rendering statements to and attempting to collect of the third party authorizes no inference that the original debtor has been released, were covered by an instruction that nothing would relieve the original debtor except payment by the party assuming the debt, and hence were properly refused.</p> <p>4. Appeal and Error—Harmless Error—Abstract Instruction.— An instruction stating a correct proposition of law is not necessarily prejudicial merely because it is inapplicable to the facts in evidence, and, where it is not so, it is not ground for reversal.</p> <p>5. Payment—Evidence—Credit of Payments.—In an action on an account, where the defense was that a third person had assumed and paid the debt, a statement of account rendered by the creditor to such third person was competent evidence as to how the payments were credited.</p> <p>6. Payment—Evidence—Relevancy—Return of Attachment Writ. In an action on an aeeount in which plaintiff attached defendant’s stock of merchandise, where the only issue was as to whether defendant owed plaintiff anything, the return of the writ showing what articles had been attached was irrelevant and immaterial.</p> <p>7. Appeal and Error—Harmless Error—Admission of Evidence.— In an action on an aeeount, in which plaintiff attached defendant’s stock of merchandise, and in which the only issue was as to whether a third person had paid the account, error in admitting the return on an attachment showing what had been attached was not prejudicial, since, if defendant owed the debt, the attachment was proper, and, if he did not owe it, any feeling of oppression aroused in the jury might be exercised by a verdict against the plaintiff on the main issue.</p> <p>8. Evidence—Opinion Evidence—Conclusion op Witness.—In an action on an account, the defendant’s answer to a question that he did not owe plaintiff one cent was object) -.cable as a conclusion.</p> <p>9. Appeal and Error—Harmless Error—Admission op Conclusion— Pacts Otherwise Established.—Where defendant in an action on an account set up payment by a third party, and testified that plaintiff had not asked him to pay anything on the debt assumed by such party, that he had talked with plaintiff’s agent frequently since selling out to the third party, and that no mention had been made of the account, that he had bought goods of plaintiff for a new store, and that he was never asked to pay that account, and where there was no evidence that plaintiff had ever rendered a statement of the account to defendant subsequent to its assumption by the third party, the defendant’s statement in answer to a question that he did not owe plaintiff a cent, though objectionable as a conclusion, in view of the facts detailed, was not prejudicial.</p> <p>10. Appeal and Error—Review—Conclusiveness op Verdict—Constitutional Provisions.—Constitution, article 6, section 22, which, provides that no cause shall Ije reversed for technical error when, upon the whole case it appears that substantial justice has been done, expresses the policy of the law that a verdict upon proper instructions shall be sustained when it can reasonably be done, and thus put an end to litigation.</p>

<p>Criminal Law —Appeal — Notice op Appeal—Form.—Under Penal Code of 1901, section 1044, requiring appeals to be taken by filing with the clerk of the court a notice, a written notice, is jurisdictional, and an oral notice in open court is insufficient.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the-Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

E. W. Lewis, Judge. STATEMENT OF FACTS BY THE COURT. The reeord in this case consists of an agreed statement of the ease permitted by paragraph 1522, Civil Code, as amended by section 11 of chapter 74 of the Session Laws of Arizona, approved March 21,1907. This action was commenced by the appellee as plaintiff against the appellants as defendants to foreclose a realty mortgage made to it by William M. and Annie D. Stallard.

<p>1. Chattel Mortgages—Affidavits—Signature.—Unless required by-statute, an affidavit attached to a chattel mortgage need not be signed by the. mortgagee; it being sufficient if it appears that it was taken by a competent officer.</p> <p>2. Chattel Mortgages—Validity — Affidavit.—A chattel mortgage purporting to be given by a corporation, and reciting that the corporation had caused it to be signed by its president, was not signed by such officer, and did not bear the corporate seal, but the appended affidavit was signed by the president and acknowledged before a notary public. Held, that, the mortgage having been recorded, it was valid under Civil Code of 1901, paragraph 3282, providing that no chattel mortgage shall have any legal effect unless the residence of the parties, the sum to be secured, and the rate of interest shall be set out, and the mortgagor and mortgagee shall make affidavit that it was bono fide; it being the obvious intention of the parties in signing the affidavit to subscribe to the mortgage, and the statute not requiring the affidavit to be signed.</p> <p>3. Corporations—Acts of Corporations—Seal.—Unless sealed with its corporate seal, a chattel mortgage alleged to have been executed by a corporation cannot be presumed to be the result of the corporate act, and the party relying on it must show that the executing officer was authorized, hence in the absence of that preliminary proof it is inadmissible in an action against the corporation.</p> <p>4. Trial—Province of Court.—As personal property does not become a fixture merely beause affixed to the soil, the question of whether a building was personalty or realty cannot be determined by the trial court merely upon its autoptic inspection, for a presiding judge cannot give judgment on his personal and private knowledge.</p> <p>5. Fixtures—Person Entitled.—Where a budding is a fixture, it, of course, belongs to thq owner of the soil upon which it rests as against a chattel mortgagee.</p> <p>6. Chattel Mortgages—Actions—Evidence—Possession.—Where it was sought to enforce a chattel mortgage upon a building which was claimed to be personalty, evidence that after delivery the mortgagee took possession was material on the question of the intervening rights of third persons; it appearing that there were defects in the formal execution of the mortgage which, while not invalidating the instrument inter partes, prevented it from giving notice by recordation.</p>

Fred Sutter, Judge. STATEMENT OP PACTS BY THE COURT. The appellant, as plaintiff, commenced this action in March, 1911, to cancel a deed conveying certain lots in the city of Douglas to Joe and Annie Kline, made by him on the fifteenth day of October, 1902, and praying for a surrender of the property to him, and for an accounting for rents and profits from March 5, 1911. Appellant and defendant Ida Kline are husband and wife, and Joe and Annie Kline are their children.

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Prank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

John H. Campbell, Judge. STATEMENT OF FACTS BY THE COURT. The appellee, as- plaintiff, commenced this action to recover from the defendant, this appellant, a judgment in the sum of $1,200 upon an insurance policy or benefit certificate issued by appellant to Feliberto Aguirre, a member of defendant society, in which appellee, as the wife of such member, was named as the beneficiary.

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p> <p>The facts are stated in the opinion.</p>

E. W. Lewis, Judge. STATEMENT OF FACTS BY THE COURT. The Crandall Contracting Company, on the 21st of August, 1909, entered into a contract with The Gila Valley, Globe & Northern Bailway Company “to furnish all labor and equipment and to perform all work, consisting of clearing, grubbing, ditching, excavating material from cuts and borrow-pits and depositing same in embankments in accordance with the specifications hereinafter named, in the construction of a branch line five…

<p>APPEAL from a judgment of the District Court of, the Fifth Judicial District, in and for the County of Gila. E. W. Lewis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Counties—Officers—Salaries—Power to Fix.—Constitution, article 12, section 4, empowering the board of supervisors to fix salaries for all county officers for whom no compensation is provided by law, to remain in effeet until changed by general law, did not authorize the board of supervisors to fix the compensation of officers, sueh as the sheriff, whose salary was fixed under the territorial laws; constitution, article 22, section 2, and Civil Code of 1991, paragraphs 2600, 2602, providing compensation by way of salary for sheriff, so that they were not officers “for whom no compensation was provided by law,” within the meaning of the constitution.</p> <p>2. Officers—Salaries—Change.—Any power given to county boards of supervisors by constitution, article 12, section 4, authorizing them to fix all salaries of county officers for whom no compensation is provided by law, whieh salaries shall remain in force until changed by general law, was only intended to be exereised temporarily during the time between admission to statehood and the enactment of legislation “by general law”; article 4, section 17, prohibiting the change of compensation of public officers during their term of office, not applying to compensation feed by the board of supervisors.</p>

<p>APPEAL from a judgment of the Dictrict Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Justices of the Peace—Constitutional Provisions—Term of Office.—Under constitution, article 6, section 1, making justices of the peaee judicial officers, and article 7, section 11, fixing their term at two years, such term cannot he changed by the legislature.</p> <p>2. Officers—Statutory Provisions—Appointment and Tenure.—An office created by statute is wholly within the control of the legislature, and the term, method of appointment, and compensation may be altered at pleasure, and the compensation may be taken away without abolishing the office.</p> <p>S. Justices of the Peace—Constitutional and Statutory Provisions —Number.—Under constitution, article 6, section 9, providing that the number of justices of the peace to be elected in precincts shall be provided by law, Laws of 1912, chapter 42, section 1, approved May 16, 1912, amending Civil Code of 1901, paragraph 948, and paragraph 1051, so as to direct the board of supervisors of the several counties to redistrict their counties into preeincts, and to provide one jnstiee of the peaee for each precinct, is valid.</p> <p>4. Officers—Holding Over—General Elections—Precinct Officers —Constitutional Provisions.—The constitution having made no provision for the election of precinct officers until the first general state election, November, 1914, under constitution, article 22, section 6, providing that all . . . precinct officers shall hold office' until their successors qualify, justices of the peaee in office at the admission of the state into the Union hold their offices till the qualification of their successors elected at the general election in November, 1914, in spite of Laws of 1912, chapter 42, legislating them out of office on January 1, 1913.</p> <p>5. Constitutional Law—Constitutional Provisions—Operation as to Laws Previously in Porce.—All territorial laws not repugnant to the constitution are expressly kept in force until altered ot repealed.</p> <p>6. Statutes—General and Special Laws—Justices of the Peace.— Constitution, article 6, section 1, makes a justice of the peaee a judicial officer, and article 7, section 11, fixes two years as his term of office. Article 22, section 6, provides that all preeinet officers at the time of admission into the Union shall hold their respective offices until their successors have qualified; and article 6, section 9, provides that the number of justices to be elected in the precinct shall be provided by law. The territorial laws (Civ. Code 1901) in force in the absence of constitutional or statutory provision as to the method of choosing the successors of precinct officers provide by paragaph 973, subdivision 2, that county supervisors may divide counties into such precincts as may be required by law, and change and create others as required, and by subdivision 17, that they may fill by appointment all vacancies in preeinet offices. Laws of 1912, chapter 42, section 1, approved May 16, 1912, amending Civil Code of 1901, paragraph 948, directed supervisors to redistriet their counties into precincts, abolished ail existing justice precincts, and terminated the offices of all existing justices of the peace. Held, that, as Laws of 1912, chapter 42, section 1, was not a general law delegating power to the boards of supervisors, it was unconstitutional.</p> <p>7. Justices oe the Peace—Appointment—Power oe Board oe Supervisors.—Boards of supervisors, as the chief legislative body of their respective counties, may, under the express provisions of Civil Code of .1901, paragraph 973, subdivision 2, and in the exereise of a proper discretion, change the precincts of their counties or create others as convenience requires, such changes to be made so as not to remove present incumbents, and in contemplation of an election when successors will be chosen.</p> <p>8. Statutes—Partial Invalidity—Eeeect.—The uneonstitutionality of Laws of 1912, chapter 42, section 1, approved May 16, 1912, amending Civil Code of 1901, paragraph 948, so as to direct county supervisors to redistriet their counties into precincts, does not render unconstitutional section 2, amending Civil Uode of 1901, paragraph 1051, providing one justice of the peace for each preeinet, since they are not dependent upon each other for validity, but treat of distinct and separable subjects.</p>

<p>Cbiminal Law—Appeal—Acquittal—State’s Eight to Appeal.—■ Penal Code of 1901, section 1038, provides that in all criminal actions the territory may appeal on questions of law alone, provided that the supreme court shall not reverse a judgment for defendant which operates as a bar to future prosecutions for the offense; and constitution, article 2, section 10, declares that no person shall be twice put in jeopardy for the same offense. Held, that section 1038 must be limited to the review .of such errors only as may occur in proceedings before legal jeopardy attaches, since in case of an acquittal questions arising in the proceedings after jeopardy attaches become mere moot questions, concerning which the supreme court has no appellate jurisdiction; there being no “action” or “proceeding” within the constitutional provision conferring appellate jurisdiction after judgment.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Prank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. E. W. Lewis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Statutes — Enactment —• Referendum — Control.—Under Laws of Special Session of 1912, chapter 71, section 3, providing a method of testing the sufficiency of initiated and referred petitions, and empowering the court to enforce or restrain action on the part of the administrative officers as the merits of the case demand, the courts have power, at the instance of. any citizen, after the filing of a referendum petition, on a proper showing, to confine and regulate the administrative acts of officers, so as to obtain a proper submission of the question raised according to law.</p> <p>2. Statutes—Referendum—“Regular General Election.”—Constitution, article 4, section 1, subdivision 10, provides that when a referendum petition shall be filed, the Secretary of State shall cause to be printed on the official ballot at the next regular general election the title and number of the measure, together with the words “Yes” and “No,” in such manner that the electors may express at the polls their approval or disapproval of the measure. Laws of Special Session of 1912, chapter 24, section 1, provides for a general election of representatives in Congress and of state, county, and precinct officers on the first Tuesday after the first Monday in November, 1912, and on the same day of every even-numbered year thereafter; and section 2 authorizes the election of presidential electors at the election so held on the first Tuesday after the first Monday in November, 1912, and quadrennially thereafter. Held, that, though chapter 24 was invalid, in so far as it provided for the election of state, county, and precinct officers in 1912, it was nevertheless valid and provided for a "general election, so far as it authorized the election of representatives in Congress and presidential electors in that year, and hence was the “next regular general election,” to which a referendum petition filed September 20, 1912, should be submitted to voters.</p> <p>3. Constitutional Law — Adoption op Statute — Referendum — Publicity-—-Review.—Where a statute passed by' the legislature has been submitted to and adopted by referendum vote, it is against public policy for the court, on a subsequent review, to declare it invalid because it has not received the publicity required by law before the election.</p> <p>4. Stipulations—Validity—Matters not Subject to Stipulation.— On an issue as to whether a statute has been legally submitted to a referendum vote of the people, the parties cannot stipulate as to the facts attending such submission, and from sueh stipulations ask the court to determine the validity of the law.</p> <p>5. Constitutional Law—Validity of Statute—Referendum—Departments of Government—Infringement.—Under the constitutional provisions separating the legislative from the judicial department of government, where a statute appears on its face to have been properly passed by the legislature, signed by the governor, and referred to the people pursuant to a referendum petition, and the governor has issued a proclamation showing that the statute has been approved by the majority of those voting thereon, and declaring the measure a law, the courts have no power to go behind the final legislative record and the governor’s proclamation, and hold the law invalid for failure to comply with some constitutional provision regulating its passage.</p>

E. W. Lewis, Judge. STATEMENT OF FACTS BY THE GOURT. The appellant, as plaintiff, commenced this aetion against the appellee, as defendant, to recover damages upon two causes of action arising from a failure of the defendant to perform his two contracts.

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Mohave. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. J. E. O’Connor, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yavapai. Erank 0. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

A. G. McAlister, Judge. STATEMENT OF FACTS BY THE COURT. The appellee, as plaintiff, commenced this action to recover judgment for a balance alleged to be due from the appellant, as defendant, upon three loans made to defendant, alleged to be due and unpaid, with interest.

<p>1. Wills—Joint and Mutual Wills.—An instrument executed by husband and wife owning community property and having no issue, whereby each gave to the other all his or her interest in the property, effective on his or her death with remainder over after the death of the snrvivor to the heirs at law of both, is a joint and mutual will.</p> <p>2. Wills—Revocation—Marriage op Testator.—Under Civil Code of 1901, paragraph 4216, providing that, if after making a will the testator marries and the wife survives, the will shall be revoked unless provisions have been made for her by marriage contract, or unless she is provided for in the will, or is mentioned therein, so as to show an intention not to revoke, a will is revoked by the marriage of testator subsequent to the execution of the will provided . the wife survives, in the absence of provisions for her in a marriage contract or in the will.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yavapai. Prank 0. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal and Error—Questions Reviewable—Appeal prom Judgment Alone.—On appeal from the judgment alone, only errors appearing upon the judgment-roll will he considered.</p>

<p>•Appeal and Ekeob—Questions Reviewable—Appeal ekom Judgment Alone.—On appeal from the judgment alone, only errors appearing upon the judgment-roll will be considered.</p>

<p>Appeal and Error—Bond—New Appeal Bond—Statutes.—Under Civil Code of 1901, paragraph 1508, as amended by Laws of 1912, chapter 44, providing that no appeal shall be dismissed or judgment affirmed because of any defect in the appeal bond, if the appellant on such terms as the court may direct file a sufficient bond, it is a condition precedent to the filing of a new bond that there be a bond on appeal, and, where the appellant has filed no appeal bond, the court has no jurisdiction to order a new bond.</p>

<p>1. Appeal and Error—Appeal Bond—Time op Filing—Sufficiency.— Under Civil Code of 1901, paragraph 1516, providing that a bond on appeal shall be of no effeet unless accompanied by an affidavit of the sureties and that unless the sureties justify within five days after notice that the adverse party excepts to the sufficiency of the sureties the appeal shall be regarded as if no bond had been given, a failure to justify an exception to the sufficiency of the sureties is fatal to the bond, and a second bond not filed within the statutory time after notice of appeal is unavailing.</p> <p>2. Appeal and Error—Bond on Appeal—Time of Filing.—The statute fixing the time within which an appeal bond must be filed is mandatory, and the filing of the bond within the statutory time is jurisdictional.</p> <p>3. Appeal and Error—Bond—Filing.—Laws of 1912, chapter 44, permitting appellant to file a legal and sufficient bond, applies only to cases where the appeal bond has been filed within the statutory time, in which case the supreme court on defects or informalities in the bond may impose terms and direct the filing of a legal and sufficient bond.</p>

<p>1. Appeal and Error—Questions Reviewable—Immaterial Rulings. Where the complaint, in an action against a county hoard of supervisors and the superintendent of roads as officers and individuals for injury to land in opening a road, alleged the invalidity of the order laying out the road, and the answer merely alleged that the road was opened at the request of plaintiff and pursuant to contract made between plaintiff and the board of supervisors, rulings having reference solely to the procedure before the board of supervisors were on immaterial issues and would not be reviewed on appeal.</p> <p>2. Counties — Contracts — Power of Board of Supervisors. — The board of supervisors of a county may make certain contracts for the county, but the county is the contracting party, and the board is the mere agency through which the county acts.</p> <p>3. Counties — Board of Supervisors — Civil Liability. — The county board of supervisors possesses concurrent jurisdiction with the superior court in laying out a publie road, and the members thereof are not civilly liable for injury arising from erroneous orders made by the board in laying out and opening a public road.</p>

<p>1. Stipulations — Conclusiveness and Effect — Stipulation as to Hearing Motion foe New Trial.—Civil Code of 1901, paragraph 1473, provides that motions for new trials may be amended at any time before finally passed upon by the court. A motion for a new trial was filed July 3d, set for hearing July 17th, and on that date continued by stipulation until July 19th, but on July 18th an amended motion was filed. Held, that, as the stipulation was general and was made in view of the statute allowing amendments, the filing of an amendment which related back to the date of filing the original motion did not relieve the opposing party from the stipulation.</p> <p>2. New Trial—Jurisdiction of Motion—Time for Hearing.—Under Civil Code of 1901, paragraph 1479, as amended by the Laws of 1912, chapter 21, providing that motions for new trial shall be determined within twenty days after the rendition of judgment or deemed denied unless continued by order of the court or by stipulation, where judgment was entered June 25th, the court retained jurisdiction of a motion for new trial filed July 3d, set for July 17th, and then continued by stipulation until July 19th.</p> <p>3. Appeal and Error — Decisions Reviewable — Finality of DeterMINATION-ORDER GRANTING NEW TRIAL-“FINAL ORDER.”-An order granting a motion for a new trial is not a “final judgment,” as it leaves the rights of litigants undetermined, the ease standing as though it had never been tried, and merely vacates the former judgment for the purpose of a new trial upon the merits of the original aetion, and in the absence of a statutory right of appeal therefrom is not appealable.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. P. Cooper, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Statutes—Construction.—The construction placed upon the statutes adopted from the state of California by the California courts is entitled to great weight in construing them.</p> <p>2. Criminal Law—Arrest—Necessity of Complaint.—A complaint is neeessary in order to authorize a magistrate to issue a warrant of arrest.</p> <p>3. Indictment and Information — Complaint — Description of Of- . fense.—Since under the direct provisions of Penal Code of 1901, section 769, as amended by Laws of 1912, chapter 35, section 3, a magistrate may hold accused for any public offense which he has no jurisdiction to try so that an order of commitment may be made for a different offense than that charged in the complaint on which an information is issued, the prosecuting officer cannot look to the complaint for the offense to be charged in the information, but must look to the commitment.</p> <p>•4. Criminal Law—Preliminary Proceedings—Commitment—Description of Offense.—Description of a well-known offense by its generic name, as the offense of arson, murder, etc., reasonably charges the existence of all essential elements of the offense.</p> <p>6. Criminal Law — Preliminary Proceedings — Commitment — Description of Offense.—It is not sufficient to describe the crime for whieh accused is committed in the order of commitment merely as a "felony.”</p>

<p>1. Criminal Law — Jurisdiction of Justice of Peace — Amount of Penalty.—A justice of the peace has no jurisdiction over a prosecution for selling a saek of sugar without stamping thereon the correct weight of the contents, as required by Laws of 1912 (1st Sess.), chapter 91, section 22, since the maximum penalty, a fine of $250, prescribed for the violation of that aet exceeds the criminal jurisdiction of the justice of the peace, as provided in Laws of 1912 (2d Sess.), chapter 8, section 2.</p> <p>2. Criminal Law — Appellate Jurisdiction — Appeal from Justice Court.—In order that a court may acquire jurisdiction of a criminal prosecution upon appeal from a justice of the peaee, it is necessary that the prosecution be one of whieh the justice had jurisdiction.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Judgment — Res Adjudicata — Parties—Presence by Representation.—Where in ejectment defendants other than an infant claimed no title, but the infant by his guardian ad, litem claimed the equitable title to the property under an alleged contract between his mother and plaintiffs’ testatrix that, in consideration of the mother’s services in caring for testatrix, she would leave the property to the infant, such aetion was barred by a former judgment against the infant’s parents in the same court as trustees of an express trust for the infant to enforce the same contract, though the infant was not formally joined as a party to such suit under Civil Code of 1901, paragraph 1299, giving to the trustee of an express trust the absolute right to maintain an action for the benefit of the cestui gue trust without joining the beneficiary.</p> <p>9. Judgment — Res Adjudicata — Determination—Demurrer—Objection to Introduction op Evidence.—An objection to the introduction of any evidence on the ground that the complaint 'showed on its face that plaintiffs had no equities and were not entitled to maintain a suit in equity, and that they had an adequate remedy at law and had elected to pursue the same, was in the nature of a demurrer to the complaint, and, having been sustained and judgment rendered, such judgment was on the merits and available to support a plea of res adjudicata.</p>

A. G. McAlister, Judge. statement of facts by the court. This was an aetion commenced by appellant as plaintiff to quiet its title to nine mining claims located in the Lone Star mining district in Gila county.

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. P. B. Laine, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Review—Transcript not Piled in Time.— Where the reporter’s transcript was not filed within sixty days after a motion for new trial was overruled, an order thereafter entered extending the time is unavailing for that purpose, and the transcript will not become a part of the record.</p> <p>2. Motions—Order “Nunc Pro Tuno”—Nature.—The office of a nwnc pro tunc entry is not to make an order now for then, but to enter, now for then, an order previously made.</p> <p>3. Railroads—Crossing Accident—Complaint.—In view of constitution, article 6, section 22, prohibiting reversals for technical error, ■where substantial justice has been done, and Civil Code of 1901, paragraphs 1277, 1293, providing that the complaint shall be a coneise statement of the facts constituting the canse of action, and requiring defects in the pleadings to be disregarded where not affeeting substantial rights, a complaint for injuries to plaintiff’s team caused .by making a flying-switch over a street crossing held to state a cause of action against the railroad company.</p> <p>4. Pleading — Complaint — General Demurrer.—Although the sufficiency of a complaint which undertakes to define the particular negligence which caused the injury must be tested by the special allegation in that respeet, a complaint stating a cause of action as to a certain failure of duty by defendant will not necessarily be held had on general demurrer because it attempts, but fails, to state other failures of duty on the part of the defendant.</p> <p>5. Pleading—Complaint—General Demurrer.—A general demurrer does not lie to a portion of the statement of the cause of action.</p>

F. B. Laine, Judge. STATEMENT OF FACTS BY THE COURT. The appellee, as plaintiff below, instituted an action against appellant, defendant below, to quiet its title to 14 mining claims and one mill site, situate in Greenlee county.