Volume 14 — Wyoming Reports

David H. Craig, Judge. William J. Delaney was charged upon an information filed by the Prosecuting Attorney of Uinta County with the crime of assault and battery upon one Stark with intent to commit murder. He was -found guilty as charged in the information, was sentenced to imprisonment in the penitentiary, and thereupon prosecuted error.

Joseph E. Stotts, Judge. Action for damages to land caused by alleged overflow, leakage and seepage of water from an irrigating ditch and reservoir constructed and maintained by the defendant. From a judgment in favor of defendant, the plaintiff brought error.

Original proceeding in mandamus. Mandamus to compel the State Auditor to issue a warrant 'for the salary claimed by the relator, Octavius A. Hamilton, as Superintendent of Water Division No. 4. The relator had been removed by the Governor, and his successor appointed. Claiming that the removal was illegal, and that he continued to hold the office, the relator instituted this proceeding to determine his right to the salary alleged to be due.

Joseph L. Stotts, Judge. Action by the Nefsy Company, a co-partnership, against the County Treasurer and ex-officio Collector of Taxes of Crook County to enjoin the collection of taxes assessed and levied against its property by the authorities of that county for the year 1903. Judgment was rendered in favor of the plaintiff, and the defendant prosecuted error.

ON petition for rehearing. (in support of petition for rehearing).

Charles W. Bramel, Judge. Replevin. The suit was brought by the First National .Bank of Shawnee, Oklahoma, against, Charles Yund, to recover possession of certain personal property held by the •defendant as sheriff under writs of attachment, and claimed 'by the plaintiff under certain chattel mortgages. The facts are stated in the opinion. From a judgment in favor of the plaintiff the defendant brought error.

David H. Craig, Judge. Exceptions to the account of William E. Tilton as administrator with the will annexed of Chauncy B. Tilton, deceased. Erom an order allowing the account the except-ants prosecuted error. The facts are stated in the opinion. The first appointment of the administrator being void, he is not entitled to' receive compensation or expenses incurred during the period that he acted under the void appointment. The appointment was clearly void.

Charles E. Carpenter, Judge. Action upon a promissory note and to foreclose a mortgage, brought by James M. Ingersoll against Daniel B. Davis, Lottie C. Davis, his wife, and Fannie Fisher. The facts are stated in the opinion. An action to foreclose a mortgage is not controlled as to limitation by Section 3454, Revised Statutes, 1899, but such an action may be brought notwithstanding that an action upon the note is barred.

David H. Craig, Judge. This action was originally brought by Charles Lewis against Mary England, as administratrix of the estate of Richard England, deceased, upon an account against the decedent. Upon the subsequent death of the plaintiff, the cause was revived in the name of Ida Lewis, as adminis-tratrix of the estate of Charles Lewis, deceased, as plaintiff. The facts are stated in the opinion.

On reserved constitutional questions from the District Court, Carbon County The questions were reserved in an action brought by Trank E. Sterritt against Charles G. Young and another to restrain the construction of an irrigating ditch across the lands of plaintiff. The defendants claimed to have acquired ■ a right of way for the ditch by condemnation proceedings as authorized by statute.

Charles E. Carpenter, Judge. The action was brought by Alexander T. Butlei, who had obtained permission of the court for that purpose, against S. W. Conwell, as receiver for Nathan S. Bristol, Charles Weston and William A. Denecke, co-partners known as W. A. Deneci The money accumulated from the assets of an insolvent person or company and placed in the hands of the receiver for the benefit of the creditors is a trust fund, held by the receiver in trust for them and in which…

Richard H. Scott, Judge of the First Judicial District, presiding. This was a suit instituted by 'Fred Littleton to enjoin James IT Burgess, County and Prosecuting Attorney of Sheridan County, from prosecuting a criminal proceeding in the District Court of that county charging the plaintiff with a violation of the statute of the state prohibiting gambling.

David H. Craig, Judge. Proceeding for the appointment of a distributer of water flowing in an alleged joint or partnership ditch. From an order making the appointment as prayed in the petition filed by the plaintiffs, the defendant brought error. The proceeding was had under the provisions of Sections 908 to 914, inclusive, Revised Statutes of 1899.

Charles E. Carpenter, Judge. On motion to dismiss, and motion to withdraw the bill of exceptions for the purpose of having the same corrected. . argued and contended that the proceeding in error should be dismissed for the failure of the plaintiff in error to have the papers in the cause transmitted to this court forthwith or in a reasonable time after the order therefor was made. argued and contended that the bill of exceptions was insufficient to authorize any…

Richard H. Scott, Judge. Action to enjoin the erection of fences upon lands of the defendant, which it was alleged would prevent plaintiff’s cattle from grazing upon open and uninclosed public lands; and to restrain an alleged illegal assertion by defendant of a right of exclusive possession to certain public lands. From ■ a judgment in favor of the plaintiff, the defendant brought error. The facts are stated in the opinion.

Joseph L. Stotts, Judge. The material facts are stated in the opinion. The drawer of the order in suit, as well as the parties to the original contract with him were necessary parties, and in their absence no judgment could properly be rendered. No action can be maintained by an assignee of a part of a fund, as it is contemplated that settlement be made with all the parties. (Price v. Elmock, 72 Fed., 610; 17 Ency.

Charles E. Carpenter, Judge. Action by Frank O. Harrison against the Carbon Timber Company, a corporation, Carl E. Vagner, Eouis R. Meyer and Andrew Olson. From an order sustaining a motion of the Carbon Timber Company to quash and set aside the summons, and the return of the sheriff thereon, the plaintiff brought error. The material facts are set forth in the opinion.

Joseph L. Stotts, Judge. This was an action to enjoin defendants from going with their sheep upon a range claimed by the plaintiffs as a cattle and horse range, and embracing a large body of public lands, and some scattering tracts of private lands, all unenclosed. The facts are stated in the opinion. There was a misjoinder of parties plaintiff, and the demurrer should have been sustained on that ground.

Joseph L. Stotts, Judge. On motion to dismiss. The failure to cause summons in error to be issued within one year from the date of the rendition of the judgment is fatal to the jurisdiction of this court, as is also the failure to serve the Attorney General with the summons in error within the year aforesaid.

Joseph R. Stotts, Judge. On rehearing. on petition for rehearing. The resolution of the Town Council adopted in November, 1904, did not provide specifically for a notice calling' in the outstanding bonds, as seems to be supposed by the court in the opinion heretofore delivered. It merely stated that notice should be given according to ordinance, and no ordinance existed regulating the matter.

Original proceeding in mandamus. Heard on demurrer to petition and alternative writ. The facts are stated in the opinion. in support of the demurrer.

Original proceeding in mandamus. Heard on demurrer to petition and alternative writ. The facts are stated in the opinion. Held: and the practically unanimous opinion of the people of the state, as evidenced by their conduct upon these matters, has been that in case of a vacancy the Governor can appoint until the next election; that at the next general election after the vacancy occurs it is for the people to elect the Judge; that the Judge when so elected…

David H. Craig, Judge. The action was brought by John C. Coble against Frank C. Bosler upon certain promissory notes. Defendant sought by way of set-off and counterclaim to recover damages for alleged false representations of the plaintiff, upon which defendant was induced to purchase ¿he property for which the notes in suit were given. The material facts are stated in the opinion.

Carroll H. Parmrlrr, Judge. The facts are stated in the opinion. In a running account the time for the filing of a lien under the mechanics’ lien law begins to run when the last item of labor is performed, or of material is furnished, and on the date of the last item furnished on a running account the indebtedness accrues. (Livermore v. Wright, 33 M., 31; Page v. Bettes, 17 Mo. App., 366; Mfg Co. v. Burns, 59 Mo. App., 391; Bolen Coal Co. v. -Ryan, 48 Mo.

David H. Craig, Judge. On motion to strike the bill of exceptions, and dismiss the proceeding in error. The facts are stated in the opinion. (In support -of the motion.) Where a statute provides a time within which a bill of exceptions must be settled or allowed, the bill must be settled or allowed within such time or it will not be considered.

C. H. Parmüljííí, Judge. On motion to dismiss. The case having been tried to a jury, and a final verdict returned, a motion for new trial was necessary to authorize a review of the errors complained of; a bill of exceptions was also necessary, and is required by the plain language of the statute. There being no bill and hence no motion for new trial the cause here should be dismissed.

ChaRliís E. Carpenter, Judge. Action for trespass by cattle. The facts are stated in the opinion. No trespass is committed when animals lawfully running- at large wander upon and depasture the unenclosed lands of a private owner.

C. H. ParmelEE, Judge. The action was brought by W. S. Metz against J. O. Willitts to recover a stated sum alleged to be due upon a sale of certain hay and the pasture feed upon certain land. Judgment was for defendant. Plaintiff brought error.

C. H. ParmRURR, Judge. Action for a balance due for lumber and building- materials, and to enforce a mechanics’ lien therefor. From a judgment for the plaintiff the defendants prosecuted error. The material facts are stated in the opinion. In the first cause of action attempted to be set forth in the petition facts sufficient to constitute a cause of action are not stated. If it is a suit on an account, an indebtedness should be alleged in a certain sum.

Exceptions by prosecuting attorney to rulings in a criminal case, in the District Court, Albany County; Hon. ■Charles E. Carpenter, Judge Heard on motion to strike the bill of exceptions, and petition in error, and to dismiss the cause. This proceeding has been treated by the prosecuting attorney as demanding the filing of a petition in error.

On motion to retax costs. That the cost of making transcript of the evidence, when properly certified and presented, is taxable against the losing party, under Section 4266, Rev. Stat., is not disputed. But here there is no certificate or statement of costs so incurred.