Volume 14 — Utah Reports

Hon. S. A. Merritt, Judge. Petition by Florence Atwood, by ber guardian, Amelia A. Sutton, in the matter of the estate of Millen Atwood, deceased. From an order granting the petition, executors and others appeal. That the intention of the testator to omit to provide for his children may be proven by parol evidence, is established by the decision of the supreme court of the United States in the case of Coulam v. Doull, 133 U. S. 216.

Hon. S. A. Merritt, Judge. Action by John Featherstone against S. P. Emerson and others. From a judgment for. plaintiff, defendant Emerson appeals. The facts are set out in the opinion of the Justices.

Hon. W. H. King, Judge. Action by J. W. Scott and wife against Provo City for damages sustained from a defective culvert in one of the ditches crossing defendant’s sidewalk. Judgment for plaintiffs. Defendant appeals.

Hon. W. H. King, Judge. Action uf ejectment by S. W. Darke, administrator, against William L. Smith. Judgment for defendant. Plaintiff appeals. A parol gift of land by father to son will not be specifically enforced in equity, even though accompanied by possession. It will not be enforced against the father while living, nor against his heirs at law, after death.

Hon. S. A. Merritt, Judge. This was an action by the Brighton and North Point Irrigation Company against Charles C. Little and others to establish the right and control of the waters of a certain canal, and to quiet title against defendants, and asking that they be required to set forth their rights. From a judgment for defendants, - plaintiff appeals. The defendants did not file any cross complaint.

Hon. W. H. King, Judge. Action by James McGregor against the Silver King Minging Company. From an order granting a temporary injunction, defendant appeals. Defendant undertook to dig a trench across plaintiff’s mining lands, and justified his acts under condemnation proceedings by authority of the statute approved March 10, 1892.

W. H. King, Judge. Action by the Crescent Mining Company against the Silver King Mining Company for trespass, and to require defendant to show cause why an injunction should not be granted pending the final hearing in the action, and to temporarily restrain defendant from the acts complained of, until the hearing upon the order to show cause.

Holden, convicted in a justice’s court of a violation of the eight-hour law respecting the employment of laborers in mines, against Harvey Hardy, sheriff. The act is in violation of section 7, article 1, of the constitution of this state. “Bee. 7. Art. 1. No person shall be deprived of .life, liberty or property without due process of law.” It is also in violation of section 1, article 14, of the constitution of the United States. “Sec. 1. Art. 14.

<p>Appeal from the Third district court, Salt Lake county. Albert F. Holden was convicted of violating the act regulating the hours of employment in mines, and appeals.</p>

Hon. LeG-rand Young, Judge. Action by Theodore Bunnell against Thomas Carter to foreclose a mortgage and to obtain a deficiency judgment. From a judgment denying the deficiency judgment, plaintiff! appeals. Neither Dooly nor Campbell assumed payment of the notes. They cannot, and never could, be held personally liable on them. If Carter is relieved, we are left in the anomalous position of having promissory notes without a principal or even a surety. This is not reasonable.

Hon. John A. Street, Judge. [Respondent filed an affidavit to obtain an alternative writ of mandate, claiming that his dismissal from the police force was wrong, as the board of police and fire commissioners had not adopted any rules at the time of the dismissal. The board were equally divided on the adoption of rules. Tbe case further shows that the respondent applied to be reinstated after the dismissal and that the board refused to reinstate.

Hon. W. M. McCarty, Judge. Defendant was found guilty, on circumstantial evidence, of the murder of Albert Hayes, alias Albert Emstrom, and was sentenced to be hung. On appeal the judgment of conviction was affirmed. The facts are stated in the opinion.

■ Appeal from the Seventh district court, Sanpete county. Hon. Jacob Johnson, Judge. Held: that where a number of persons, each having a separate piece of property held by separate and distinct titles, were threatened or suffering from an act that affected them all in the same manner, they might unite in one suit and by one decree obtain complete relief as to all.

Hon. John A. Street, Judge. Action by Joseph Dederichs against the Salt Lake City Railroad Company for damages sustained by plaintiff while crossing defendant’s track. From a judgment for plaintiff defendant appeals. The case was before this court earlier in the year, and is reported in 13 Utah 34.

Hon. John A. Street, Judge. Petition by Salt Lake county for mandamus to compel Morgan Eichards, State Auditor, to issue warrants for the payment of mileage and attendance of jurors in civil cases. From a judgment denying the writ, petitioner appeals. No briefs were filed in this case.

Appeal front the district court, Seventh judicial district. Hon. Jacob Johnson, Judge. Certiorari by Willard Pehrson against the city council of the city of Ephraim to review the revocation of a liquor license. From a judgment for plaintiff, defendant appeals.- The only limit placed upon the council is, that as a precedent to revocation, it must be the judgment of the council that it would be necessary for the peace and good order.

<p>Village — What Constitutes,</p> <p>Where it appeared from the evidence that a settlement consisted of 14 families, each family containing about 5 persons; that these reside along a stream, the distance from one extreme end of the settlement to the other being about two miles and a half, some residing within 40 rods of each other, and others being distant about a mile or more; that their chief occupation was farming; that the settlement contained a school district, a district school, and a post office; and that the nearest settlement to the north was distant about 15 miles, to the west about 12, and to the south about 6 miles, — it was not error in the court to instruct the jury that as a matter of law such a settlement was a village, within the meaning of the statute (chapter 63, p. 70, Sess. Laws 1892).</p>

■Appeal from the Third judicial district court. Hon. John A. Street, Judge. Action by the North Point Consolidated Irrigation Company against the Utah and Salt Lake Canal Company and others. From an order granting a temporary injunction, defendants appeal. Motion to dismiss for want of jurisdiction. On a motion for a re-hearing, appellants filed the brief from which the following is taken: rules for the construction of state constitutions.

Hon. John A. Street, Judge. Ejectment by M. Eastman against A. E. Gurrey. From an order vacating a judgment for plaintiff, plaintiff appeals. Respondent moves to dismiss the appeal on the ground that the order setting aside the judgment was not final.

Hon. S. A. Merritt, Judge. Frank McDonald was convicted of assault, and appeals. An- assault with intent to kill necessarily includes an assault to do bodily barm, for a person cannot be killed without bodily harm being done.

Mandamus by the State on relation of Morgan Richards, Jr., state auditor, directed to Charles E. Stanton, clerk of the Third judicial circuit court, for Salt Lake county. No briefs were filed in this case.

Hon. John A. Street, Judge. Action on a promissory note by Granville Gillett against Thomas E. Taylor. From a judgment for plaintiff, defendant appeals. The burden is not upon the defendant to show an express agreement between the plaintiff and another who signed the note with defendant that the defendant was accepted as a surety.

Hon. M. L. Ritchie, Judge. Action by S. W. Morrisbn and others against the Inter-Mountain Salt GO', and others to foreclose a sub-eontract- or’s lien. From a judgment for plaintiffs, defendant appeals.

Hon. H. H. Rolapp, Judge. This appeal is by the administrator from a decree of the district court, Weber county, Utah, entered in the matter of the above estate, adjudging the Eccles Lumber Company to have a lien upon certain property of the estate of W. S. Stone, deceased, and ordering that it be satisfied before any part of the estate be assigned for the use and support of the widow and minor children of said deceased.

Hon. H. H. Rolapp, Judge. Action by Frank Thompson, executor of James Thompson, deceased, and Joseph R. Lane, administrator with the will annexed of James Thompson, deceased, against Moroni Skeen and others. The actions were consolidated, and judgment rendered for plaintiffs, and defendant Richard Flint appeals.

Hon. C. H. Hart, Judge. Action by Ricy H. Jones against the New York Life Insurance Company. From various orders, and from judgment plaintiff appeals. Affirmed. This was the second appeal of this case. It was before the territorial supreme court at the June term of 1895. The opinion of the court is found in 11 Utah 401. The final order in this ■cause was made on the 4th day of March, 1895. The facts are recited in the opinion rendered by the supreme court of the territory.

Hon. S. A. Merritt, Judge. Action by tbe Wasatch Mining Company against Priscilla P. Jennings and others for an accounting. From a decree for plaintiff defendants appeal. This cause came before the supreme court of the territory and is reported in 5 Utah 243, where the briefs are quite fully given. The court had no authority to vacate the former judgment except for the purpose of granting a new trial. 2 C. L. U. 1888, sec. 3400.

H. H. Balapp, Judge. Action by Sidney Stevens and others against the South Ogden Land, Building & Improvement Company and 'Others, to set aside conveyances and for the appointment of a receiver. From a judgment sustaining the demurrer to-the complaint, plaintiffs appeal.

Hon. H. W. Smith, Judge. Action by George A. Everett and others against J. C. Taylor and others. Judgment for defendants, and plaintiffs appeal. This action was brought by the plaintiffs against the defendants to recover damages in consequence of the alleged wrongful taking and conversion of 7,000 pounds of wool of the value of $700.

Hon. S. A. Merritt, Judge. Action by Y. M. C. Silva against W. L. Pickard and H. Cohn & Co. for a partnership accounting. From the judgment, Silva and Pickard appeal. No briefs were filed in this case.

Appeal irom tbe Second district court, Weber county. Hon. H. H. Eolapp, Judge. Action by Sidney Stevens against W. J. Stephens and and S. C. Stephens, doing business under the firm name of Stephens Bros, Verdict for defendants and plaintiff appeals.

<p>Statutes — Repeal—Nuisance—Intent—Harmless Error.</p> <p>1. Comp. Laws of Utah 1888, § 4566, which defines a public nuisance, and denounces the annoying, injuring, or endangering the comfort, health, repose, or safety of three or more persons as a public nuisance, was not -impliedly repealed by sections 4, 5, c. 63, Sess. Laws 1892, amending section 2264, Comp. Laws Utah 1888, relating to “befouling waters,” since section 4566 relates to and was intended to denounce and punish public nuisances in general, and is applicable whenever a nuisance affects three or more persons, while sections 4, 5, of the act of 1892 relate only to, and were intended to denounce and punish the befouling of waters of any stream used for domestic purposes by the inhabitants of any city, town or village, and leave wholly unprotected all persons who are not such inhabitants, and since an act which might constitute a nuisance under the former law might not constitute an offense under the latter.</p> <p>2. Where two statutes do not relate to the same subject, and are not enacted for the same purpose, they are not repugnant to each other.</p> <p>S. A witness who was not an expert was permitted to state his opinion as to a certain subject, calling for expert testimony, but upon cross examination modified his statement by limiting it to the facts of the case, and as the facts in all probability would ha,ve -produced the same effect upon the jury, and the evidence outside of the objectionable statement was ample to warrant the jury in returning a verdict against the defendant, held, that while it was improper for the witness to state his opinion, it was not, under the circumstances, prejudicial error,</p> <p>4. Where a party so uses his property as to annoy, injure or endanger the comfort, repose, health, or safety of three or more persons, his acts ar-e unlawful, and he is liable to prosecution under section 4566, Comp. Laws Utah 1888, even though he may be in pursuit oí a lawful business, and conducting it in a reasonable and careful manner.</p> <p>5. In determining the question of a nuisance under the statute, the motive or intent with which the act complained of was committed cannot be considered.</p>

<p>Action on Insurance Policy — Pleading—Setting Forth Instrument in Full — Demurrer.</p> <p>1. Under our system, in a suit upon a written contract, it makes no difference whether a contract is set out in hcee verba, or whether it is annexed, and by proper reference made a part of the pleading. However, matters of substance, which are preliminary or collateral to the instrument, must be properly averred so that the ultimate facts for which it was incorporated will be clearly and distinctly presented; and, if the instrument should be defective or ambiguous, it is incumbent upon the pleader to place upon it some construction by proper allegation, or else a demurrer will lie.</p> <p>2. This action was brought to recover upon a fire insurance policy. The complaint contains an allegation to the effect that between the 15th and 25th of December, 1895, the plaintiff furnished proof of loss. The dates mentioned in this allegation were within the time required by the terms of the policy to furnish such proof, the fire having occurred on the 15th of December, 1895. Held, that the allegation was sufficient for the purposes of a general demurrer.</p> <p>Miner, J., dissenting.</p>

<p>(See Stephens v, American Fire Insurance Company, supra.)</p>

<p>.(See Stephens v. American Fire Insurance Company, supra.)</p>

Hon. M. L. Eitchie, Judge. Action by Lydia Y. Merrill against John D. Spencer, county collector, to restrain the collection of a tax levied under the provisions of section 91 of the revenue act, Laws of 1896, p. 451. This section provides that the board of county commissioners each year “must levy taxes upon the taxable property of the county, not exceeding five mills on the dollar for county purposes, hor three mills on the dollar for district school purposes.

Hon. S. A. Merritt, Judge. Action of tort brought by John Butte against the Pleasant Valley Coal Company for art injury received by plaintiff while working in defendant's mine. From an order directing a non-suit, plaintiff appeals. Cited: As questions of fact for the jury to determine: Wines v. By. Co., 9 Utah 129; Olson v. By. Oo., 9 Utah 129; Smith v. By. Co., 9 Utah 141; Jeffs v. By. Go., 9 Utah 374; Grand Trrnilc v. Ives, 144 U. S. 408; Linderberg v. Orescent Min.

Hon. S. A. Merritt, Judge. Action by George F. Culmer against Francis D. Clift and others to foreclose four mechanics’ liens, on three of which judgment of foreclosure was rendered, viz.: one in favor of G. F. Culmer & Brothers, one in favor of E. 0. Coffin Hardware Co., and one in favor of Fred W. Gray. No briefs were ñled.

Hon. John A. Street, Judge. George Bates was convicted of murder in the second degree and sentenced to ten years’ imprisonment, and appeals. The court had no jurisdiction to try the defendant with less than twelve men as a jury. Section 10, of article 1, of our constitution is repugnant to the 14th amendment to the United States constitution. It abridges the privileges of citizens and deprives citizens charged with crime of due process of law.

Hon. John A. Street, Judge. Action by T. A. Walley against the Deseret National Bank for the conversion of two promissory notes deposited as colatteral security for a loan. From a judgment for plaintiff, defendant appeals. Tbe mere payment of interest in advance is not of itself sufficient to extend the time of the payment of the principal of the note.

Hon. S. A. Merritt, Judge. Action by A. H. Hennefer, Rebecca A. Bunce, James McLaughlin, and Celia M. Campbell against Jennie Hays. The actions were tried together. From a decree for plaintiffs, defendant appeals. No briefs were filed.

<p>Execution against a County — Exemptions—Mandamus—Audited Claim.</p> <p>1. K. brought suit against Emery county for services, and obtained ■ judgment before a justice of the peace, and afterwards levied execution on property of the county, and sold it. Emery county then commenced suit against K. and the sheriff for conversion of the property. Held, that a county is one of the political divisions of a state, and is clothed with certain political power of government of its local affairs.</p> <p>2. Section 3419, Comp. Laws Utah 1888, giving a party in whose favor judgment is rendered a right to execution; and subdivision 10 of section 3429, exempting certain classes of property from execution against a county, — cannot be-extended so as to include the right to levy an execution against the property of the county, state, or municipal organization, in the absence of a statute expressly granting such right in express terms.</p> <p>3. Under section 199, p. 307, Comp. Laws Utah 1888, a judgment against a county, when duly filed, becomes an audited claim against said county; and plaintiff, in case of failure from lack of funds or refusal to pay the same, can resort to his writ of mandamus.</p>

Hon. H. H. Rolapp, Judge. Action by Sophia V. Benson against Nicholas Anderson and Nephi P. Anderson. Judgment for plaintiff, and defendants appeal from an order denying a motion for change of venue and vacating an order.

<p>Appeal — Findings in Chancery— Secondary Evidence — Mechanic’s Lien — Waiver.</p> <p>1. “Where a caséis tried in a court sitting as a court of chancery, and the evidence is conflicting, the findings of fact will be conclusive in the appellate court, unless they are so manifestly against the weight of evidence as to demonstrate some oversight or mistake. So, likewise, where the case is tried before a referee, and his findings are confirmed by the court below.</p> <p>2. “Where a written instrument is traced into the hands of a party, not within the state, secondary evidence is admissible to prove the contents of the instrument, and this without further showing that the original was lost or destroyed. In such case no notice to produce is necessary, and a copy of the instrument is competent evidence.”</p> <p>3. Where a mechanic stipulates with the vendee of premises that he will look to some other person for services performed thereon, or that all such claims have been paid, he thereby waives his lien on such premises. A mechanic’s lien is a privilege conferred by statute, and ordinarily may be waived by express agreement of the party in whose favor it exists.</p>

'Application by Morris L. Ritcbie against Morgan Richards, state auditor, James Ghipman, state treasurer, and A. G. Bishop, attorney general, as the board of state canvassers, for a writ of prohibition. The journals must show, in order to support the integrity of any act, that all the necessary constitutional steps were taken in its passage. Cooley’s Gonst.

<p>Application of Charles E. Stanton against Harvey Hardy, Sheriff, for a writ of habeas corpus.</p>

<p>Appeals — TERRITORIAL and State District Courts.</p> <p>Appeals lie from the district courts of the late territory of Utah, when the decisions of such courts are rendered in cases appealed from the justices’ courts, even -when such appeals are perfected after statehood. In such cases the laws of the territory regulating appeals control, and not the following clause of article 8 of section 9 of the constitution: “ Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district courts on such appeals shall be final, escept in cases involving the validity or constitutionality of a statute.” The district court referred to in this section is the district court of the state, and not that of the territory.</p>

Hon. H. W. Smith, Judge. Action by James A. Wright against the Southern Pacific Company for injuries received while plaintiff was in the employ of defendant as a brakeman.

Hon. W. H. King, Judge. Action by J. R. Hodson against the Unión Pacific Railway for damages sustained by the killing of a horse. From, a judgment for plaintiff defendant appeals. No briefs were filed.

Hon. H. W. Smith, Judge. Action by Charles Hecht against Joseph Metzler for tort committed in the ■ fraudulent misrepresentation of land and its rental value. From a judgment for defendant, plaintiff appeals. No briefs were filed.

<p>Appeal from the Third district court, Salt Lake county. Hon. John A. Street, Judge.</p> <p>Action by State Bank of Utah against the Burton-Gardner Company and others on a promissory note. From a judgment for plaintiff, defendant appeals.</p>

Hon. C. H. Hart, Judge. Action by Annie Johnston and another against William Meaghr and others for malicious prosecution and false imprisonment.. Judgment for defendants. Plaintiffs appeal.

Hon. H. H. Rolapp, Judge. Suit by John R. Sawtelle against the North American Savings, Loan and Building Company. Decree for defendant. Plaintiff appeals. The relation of stockholder and borrower are distinct and may exist independently of each other. Sweeney v. Ass’n., 26 S. W. 290; Blakeley v. Ass’n., 26 S. W. 292; Association v. Furey, 20 Atl. 890. The mortgage itself contained sufficient to put him on inquiry.

Hon. C. H. Hart, Judge. Action by James C. Armstrong, receiver of tbe Citizens’ Bank of Ogden, against tbe Cache Yalley Land and Canal Company and others. From a judgment for defendants, plaintiff; appeals.

Hon. H. H. Eolapp, Judge. Action by Charles Maynard against the Locomotive Engineers’ Mutual Life and Accident Insurance Company for an injury sustained in the loss of an eye. From a judgment for plaintiff, defendant appeals.

<p>Assignment op Claim — Action by Assignee — Evidence.</p> <p>1. T. & IC were contractors, wlio built a bouse for S., upon which a certain sum of money was due on a certain day, and tiie same assigned for a valuable consideration to McC., subject to a deduction of any amount that might be a valid lien to subcontractors or material men. In a suit by McC. against S. for the amount assigned, held, that evidence of a prior assignment by T. & K. of portions of the fund to the subcontractors was properly excluded where it appears that T. & K. retained control of the fund and power of revocation until duly assigned to McC.</p> <p>2. Held, also, that declarations by T. & K. in disparagement of title, made before assignment to McC., are admissible against him, and that it was error to exclude such declarations.</p> <p>3. Held, that it was not error to exclude testimony of the architect as to the market value of material furnished for the house, the relation between the market value and the contract price not having been shown.</p> <p>4. Testimony of a witness was rightly excluded where it was based solely upon a monthly statement nqt made by the witness, and of which he had no information, and neither the statement nor the books from which it was taken being offered in evidence.</p> <p>5. After the books of M. & Co., one of the subcontractors or material men, were in evidence, it was competent to show that these books did not contain an account of all the material furnished by them to the contractors for S.’s house, as also a bill for glass, in the handwriting of the witness, sent to T. & K., the witness testifying that the glass went into the house in question, said bill should have been admitted in evidence with the other testimony for what it was worth, and it was prejudicial error to exclude it.</p> <p>6 After showing that all of certain material in the house was furnished by M. & Co., it was error not to admit testimony of the architect as to the quantity of such material in the house. Held, also, that the testimony that the material was not paid for as delivered should have been received in evidence.</p>

<p>Nonsuit —Waiter —Appeal in Equity— Review — Fraudulent Conveyances — Sufficiency of Evidence.</p> <p>1. The offer of evidence after the overruling of a motion for nonsuit is not a waiver of the exception taken to the order overruling such motion, under Sess. Laws 1894, p. 42.</p> <p>2. Under section 9 of article 8 of the constitution, which provides that appeals to this court shall he upon the record made in the court below, “* * * and that in equity eases, the appeal may he on questions of both law and fact,” held, that questions of both law and fact arising in equity cases can be reviewed in this court upon the record made in the court below, if properly brought to this court.</p> <p>3. When there is no testimony offered by the plaintiff, in his affirmative case, tending to establish a prima facie case of fraud in the alleged sale of property with intent to defraud creditors, a motion for nonsuit should be granted. Fraud cannot be presumed from mere suspicious circumstances, but must be proved. Testimony offered held insufficient to make a prima facie case.</p>

Hon. O. H. Hart, Judge. Action by Martin Ensign, Jr., against George W. Fisher et al. to set aside a conveyance alleged to have been made to defraud creditors. From a judgment for plaintiff, defendants appeal. A preliminary question arises as to practice on equity appeals uncler our new constitution. This is an equity case, and the constitution has totally changed the former practice.

Hon. W. M. McCarty, Judge. Action by L. Johnson and others against Kate Tootle and others. Held: in consequence thereof, that plaintiffs should be subrogated to the rights of the Deseret Savings Bank in and to the trust deed paid by them, and that as such equitable mortgagees the plaintiffs were entitled to have that portion of the premises described in the complaint, and purchased by them, and levied upon by the 'defendants,…

Hon. M. L. Ritchie, Judge. Action by David C. McLaughlin, receiver of the Park City Bank, against Thomas F. Mulloy. From a judgment for plaintiff, defendant appeals. The partner who signed the firm name without authority is himself bound, the same as if he had signed his own name.” Bates on Partnership, sec. 349, and cases cited; Hendrie v. Berlcowitz, 37 Cal. 113, cited in 3 Dill. 51; Dow-lings.

<p>Attachment qp Judgment Debtor — Payment to Sheripp.</p> <p>Appellant obtained a judgment against defendants, whose indebtedness on the judgment thus obtained was attached by a judgment creditor of appellant, and paid by defendants to the sheriff. Held, that such attachment was valid under section 3315, Comp. Laws 1888, which authorized the payment of the amount to the sheriff serving the attachment.</p>