Volume 15 — South Dakota Reports

<p>Appeal from circuit court, .Hughes county. Hon. Boring E. Garry, Judge.</p> <p>Action by Cassius C. Bennett against Charles W. Darling and others to quiet a tax title. From a judgment in favor of plaintiff, certain defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>All essential steps leading up to a valid tax must be alleged and proven by the party seeking to enforce the.tax. Comp. Laws, Sec. 1643; O’Neil v. Tyler, 3 N. Dak. 47, 61; Swenson v. Greenland, 4 N. Dak. 532; Salmer v. Lathrop, 10 S. D. 216, 227.</p> <p>The tax deed is void on its face, because it embraces several distinct lots, purporting to have been sold en masse for a gross consideration. Salmer v. Lathrop, 10 S. D. 216, 225. Such sales are clearly and unquestionably void. O’Neil v. Tyler, 3 N. D. 47, 52; Power v. Larabee, 2 N. D. 141, 148; First National Bank v. Roberts, 79, N. W. Rep. 1050; Black on Tax Titles, Sec. 123; Cooley on Taxatation, (2nd. Ed.) 493, 494.</p> <p>A tax deed loses its character as evidence when it is shown that in any essential particular the proceedings oh which it depends were irregular. Lacy v. Davis, 4 Mich. 140-157; Case v. Dean, 16 Mich, 12, 34, 37; Ambers v. Rogers, 9 Mich. 332; Rayburn v. Kuhl, 10 Iowa 92; Cooper v. Shepardson, 51 Cal. 299; Bidleman v. Brook, 28' Cal. 75; Thompson v. Ware, 43 Iowa 453; Butler v. Delano, 42 Iowa 350; Williams v. Kirkland, 13 Wall. 306; French v. Edwards, 13 Wall. 514; Blackwell on Tax Titles, 83. Note D.; 2 Desty on Taxation, 961, 969; Johnson v. Elwood, 53 N. Y. 431; Grosbeck v. Sealy, 13 Mich. 414.</p> <p>Objection made at the trial that the pleading does not state facts sufficient, etc., is not favored, and the presumption in such a case is in favor of the pleading. Anderson v. Alseth, 6 S. D. 566; Johnson v. Burnside, 3 S. D. 230.</p> <p>It was the duty of the court to determine the amount of taxes against the premises in question, whenever “any action or proceeding shall be commenced and maintained before any court * * "* to recover the possession or title of any property, real or personal, sold for taxes, or to invalidate, or cancel any deed or grant thereof for taxes * * * the true and just amount of taxes due upon such property or by such person, must be rendered and given therefor against the taxpayer. Session Laws 1893, Ch. 160, Sec. 1; Clark v. Darlington, t 1 S. D., 418, 78 N. W. 997; Salmer v. Lathrop et al. 10 S. D. 216; Charlton v. Kelly, 24 Colo. 173, 277.</p> <p>When inadmissable evidence is received in an action tried before the court alone, it will be presumed on appeal that the court did not consider it in making Ijis findings of fact.” Syll. Bowman v. Sedgwick, la., 82 N. W. 491.</p>

Hon. A. W. Campbell, Judge. Action by Robert Shull against the New Birdsall Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The facts are stated in the opinion. A well established rule of law is: “Agencies cannot be established by the admission or statements of an agent.” This rule is abundantly sustained by various courts, and especially by the courts of North and South Dakota. Gorden v. Vt.

Hon. Joseph B. Moore, Judge. Action by James F. Summers against the Glenwood Gold and Silver Mining Company and another to vacate and set aside a transfer of realty. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.

Appeal form circuit • court Lawrence county. Hon. Joseph B. Moore, Judge. Action by William Naddy against Gottfreid Dietze and others to quiet title to certain mining property. From a judgment in favor of defendants, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by Joe Kirby against W. J. Crisp. The Sioux Falls Savings Bank filed a complaint of intervention, and from an order overruling a demurrer to such complaint the plaintiff appeals.

Hon. Loring E. Gaeey, Judge. Action by A¥illaim W. Smithson against Fail River county to recover an alleged balance due as salary as register of deeds. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by K. W. Coughran against Michael M. Maride}' and wife to determine conflicting claims to realty. There was a judgment in favor of the plaintiff, and a motion by defendants to set it aside. From an order denying the motion, defendants appeal. The affidavit upon which the order for publication of the summons in this case was made was'insufficient to confer .jurisdiction.

Hon. Loring E. GaRRy, Judge. Action by John Nelson against Johanna Jordeth and others to determine conflicting claims to realty. From a judgment in favor of defendants, plaintiff appeals.

Hon. E. G. Smith, Judge. This case was first decided by this court in an opinion reported in 13 S. D. 595, 83 N. W. 687. In that opinion the judgment of the trial court in favor of the defendant, was affirmed. This opinion is upon a rehearing subsequently granted.

Hon. TEvi McGub. Judge. Action by Francis M. Hubbell against the town of Custer City. From a judgment in favor of defendant, and from an order overruling a motion for a new trial, plaintiff appeals. The contract sued upon is a negotiable instrument, § 4456, Comp. Taws; 15 Am. and Eng.

<p>Under Comp. Laws, § 5024, defining a judgment as the final determiation of the rights of the parties in the action, an instrument headed, “Judgment for Plaintiff,” and which is treated by the parties as a judgment at the time of its rendition, containing the findings of the court, and reciting that it is considered and adjudged that plaintiff have and recover judgment against defendant for a certain sum, is a judgment on which execution may issue, though it fails to comply with any approved form.</p>

<p>1. An appeal from a judgment, and from an order denying a new trial made after entry of judgment, will not be dismissed, as being a double appeal.</p> <p>2. Where the evidence is not brought up for review, the question whether the facts sustain the judgment must be determined from the findings of the court.</p> <p>3. Where, in a suit to quiet title, the evidence is not brought up for review, and the findings of fact as to the ownership were irreconcilably in conflict, the decree of the trial court could not be sustained.</p> <p>Haney, J., dissenting.</p>

<p>A stock certificate issued by a loan company stipulated that on compliance with its by-laws and performance of all agreements it would pay on a specified date $100 for each share of such stock. The conditions on which the certificate was accepted nowhere suggested that the value of the matured stock was to depend on the financial condition of the association. The holder of the certificate was to have no interest in the affairs of the company, nor any control over them, and was to assume no further liability, except as stated in the certificate and by-laws. The company’s by-laws contained no provision inconsistent with the definite contract expressed in the certificate. Representations made part of the contract declared that such company matured its stock at a definite time. Held, that on the holder’s compliance with the contract the company was bound to pay him, at the expiration of such period, the specified value of such shares, and not their value based on the company’s financial condition.</p>

Julian Bennett, Judge. Action by T. H. Holm against the First National Bank of Clark to recover a money judgment and the cancellation of certain notes and mortgages. From a judgment in favor of defendant, plaintiff appeals.

<p>Appeal from circuit court, Minehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by E. W. Cochran against Charles R. Germain and another. From an order setting aside a judgment in favor of plaintiff, he appeals.</p>

<p>When a party who has not been properly served with process appears in a case, and asks to have a decree against him set aside, for the reason that the court had no jurisdiction of his person, and for the further reason that such decree was procured by fraud and deceit, and was without evidence to support it, such appearance is general, going directly to the merits, and is a waiver of all defects in the service of process.</p>

<p>1. Plaintiff in'an attachment suit moved before the hearing that the court-extend the time within which he might file certain affidavits and , , proofs to amend those theretofore filed in support of the affidavit of attachment, on the ground that, they were newly discovered evidence, stating that, owing to the fact that such evidence was not known to plaintiff when he filed his original affidavits, it was not then presented. Held, that such motion was for a continuance of the case for the purpose of securing further evidence, and not for the purpose of amending affidavits or proceedings.</p> <p>2. Plaintiffs attached' a stock of goods valued at between four and five times the amount of their claim, and defendant’s store was closed. On the hearing plaintiffs were granted a continuance, and permitted to amend their proceedings by substituting a new undertaking, and thereaiter moved for another continuance on the ground of surprise and inadvertence, but the affidavit in support thereof did not state facts showing wherein plaintiffs were surprised, or in what the inadvertence, consisted, nor was it shown within what time the evidence could be produced. . Held, that a refusal to grant t'he continuance was not an abuse of the trial court’s discretion.</p>

Hon. Levi McGee, Judge. Action brought by Mary Burnett and another against Annie I. Costello to establish claims to certain mining property for a partition and for an accounting. From a judgment in favor of plaintiffs, defendant appeals. Notwithstanding the provisions of Sec. 4830 Comp.

Ho.n. A. W. Campbell, Judge. Action by S. R. McConnell and .another against F. T. Spicker. From, an order sustaining a demurrer to defendant’s answer, he appeals. The facts are stated in the opinion. Averment that cause of action set forth in the complaint did not accrue within six years of the commencement of this action suL ficiently pleads the statute. Searles v. Knapp et al.,- 5 S. D. 327. The statute contemplates a departure from the-state (Comp.

<p>1. A contention that the evidence is insufficient' to support tile verdict on certain grounds will not be considered on appeal, where such grounds are not mentioned in the- specifications of error.</p> <p>2. It was not an abuse of discretion for a trial court to deny a motion for a new trial for newly-discovered evidence, authorized- by , Comp. Laws, § 5088, subd. 4, declaring that a new. trial may be granted for newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial, where the affidavit did not state any reason why defendant had not procured the evidence .at the trial, and there was no showing of diligence to discover the evidence before the trial.</p> <p>3. Where, in an action on a note, affidavits as to the prejudice of the jurors were produced on the part of defendant, and were met by affidavits of the jurors themselves showing that there was no prejudice on their part, there was no -error in denying a new trial on such ground.</p>

Hon. A. W. Campbell, Judge. Action by F. E. Kelley against Jens Anderson, for damages by lire alleged to have occurred through the negligence of defendant. From a judgment in favor of plaintiff, defendant appeals. The negligence of the defendant must appear affirmatively from the evidence on the part of the plaintiff. Mattoon v. Railroad, 6 S. D. 301. That one may lawfully kindle a fire upon his own premises is a principle of law that is recognized almost universally.

<p>Where an action is tried by the court -without a jury, and a motion is made for the dismissal of the action at the close of the evidence which is granted, such motion will be taken on appeal as an application for findings in behalf of the defendant, and, in the absence of a motion for a new trial, the supreme court cannot review th'e evidence in order to determine an assignment of error that tne findings of the court in favor of defendant were not supported by the evidence.</p>

Hon. Joseph W. Jones, Judge. Action by Joseph C. Davis, as trustee of the estate, etc., of Matous Novotny, a bankrupt, against Matous Novotny and others. From a judgment for defendant, Petts-Spencer-Smith Co., plaintiff, appeals. The complaint in this action was not open to the objection that several causes of action were improperly joined therein. 2 Estus’ Plead. 3115; Story’s Eq.

Hon. Joseph B. Moore, Judge. Action by William S. Elder, administrator, and others against the Horseshoe Mining & Milling Company and others, to establish title to certain mining property. From a judgment in favor of defendants, plaintiffs appeal.

Hon. A. J. Plowman, Judge. Action by Carlo Gionnonatti against Pietre Michelletti and others, to quiet title to certain realty and for an accounting. From a judgment in favor of plaintiff, defendant Pietre Michelletti appeals.

<p>Appeal from circuit court, Marshall county. Hon. A. W. Campbeee, Judge.</p> <p>Action by the Pioneer Savings and Loan Co., a corporation, against Anna M. Dyer and others. From a judgment in favor of plaintiff, defendants appeal.</p>

E. G. Smith, Judge. Suit by Sir. Frederick Richard Pollock and others against Anna Wright and others, to reinstate and foreclose a mortgage upon realty. From a decree in favor of the defendants, complainants appeal. The doctrine of subrogation is a creature of growth and development. The early cases frequently held to the narrow rule of the voluntary payment and denied the subrogation.

Hon. Joseph. B. Moore, Judge. Action by Martin Sands against Alexander Cruikshank and another. From an order granting defendants a new trial, plaintiff appeals. The facts are stated in the opinion.

<p>1. Under laws 1897, Chap. 72, § 11, malting it unlawful to-sell, furnish, or give away intoxicating liquors to a minor, an indictment alleging an unlawful selling and giving away of intoxicants to a minor charges a single offense.</p> <p>2. Under laws 1897, Chap. 72, § 11, making the fact of selling intoxicants to a minor prima facie evidence of an intent to violate the law, an accused indicted for such selling may show that he acted in good faith, without criminal intent, and was innocently ignorant of the purchaser’s minority.</p>

<p>A party who sells liquor to another in the belief that the latter is an adult, which belief is-formed after an investigation and inquiries, will not be subject to a prosecution therefor, though the buyer is in fact a minor.</p>

Hon. A. W. Campbell, Judge. Action by Jonas Johnson against Thomas M. Plotner and another, to enforce the specific performance of a contract for the sale of certain realty. Where part of the purchase price is paid and possession taken and improvements made, the contract is not within the statute of frauds, and specific performance thereof may be denied.

<p>Appeal from circuit court, Grant county. Hon. A. W. Campbell, Judge.</p> <p>Action by William C. Krueger against A. C. Dodge and another, as executors of the estate of John S. Proctor, deceased, to enforce specific performance of a contract for the sale of realty. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Error in circuit court, Eawrence county. Hon. Joseph B. Moore, Judge.</p> <p>Herbert D. Caddy was, convicted of robbery, and he brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from circuit court, Turner county. Hon. E. G. Smith, Judge.</p> <p>Action by E. M. Cope and another against Eredericka Eckert and another, to quiet title and determine adverse claims to certain realty. Erom a judgment in favor of defendants, plaintiffs appeal.</p>

Hon. E. G. Smith, Judge. Proceedings on the laying out of a highway in the township of Turner and county of Turner. From a judgment of the circuit court affirming an order by the board of town supervisors purporting to lay out the highway, Richard Williams appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by the McCormick Harvesting Machine Company against the Yankton Savings Bank and another. From a judgment in favor of defendants, plaintiff appeals. The bank received the money as a trust fund.

<p>Defendant executed a note, interest coupon notes, and a trust deed. The payee and trustee were officers of an investment company, which had issued debenture bonds, and the papers were delivered by such officers to certain trustees for the holders of such bonds, the investment company to receive all interest or interest coupons due, unless such trustees were notified that the company had failed to pay interest on any such bond. At maturity of a coupon, January 1, 1894, it was returned to such company, and retained until a receiver was appointed, the next June, and held by the receiver until he sold it to plaintiff, in 1898. In 1896 the trustees for the bondholders sold the principal note and trust deed to a purchaser, to whom the payee and trustee named in the deed executed an assignment in due form of the mortgage and the note or notes secured thereby. The same year defendant conveyed the mortgaged property to such purchaser in full payment of the debt, and the purchaser canceled the principal note and trust deed. Held, that, even if the sale by the trustees for the bondholders did not carry with it the 1894 coupon, the transfer executed by the payee and trustee in the trust deed conveyed the principal note and all coupons to the purchaser, and by such settlement between him and defendant the 1894 coupon was paid.</p>

<p>Appeal from circuit court, Codington county, Hon. Julian Bennett, Judge.</p> <p>Action by M. R. Baskerville against Gaar, Scott & Co., upon a balance alleged to be due as commissions. From a judgment for defendant, plaintiff appeals.</p>

Hon. E. G. Smith, Judge. Action by John Chamberlain against George D. Wood and others to recover damages for unlawful deprivation of office. From an order sustaining a demurrer to plaintiff’s complaint, he appeals. This constitutional prerogative carries with it the authority for the elector to write on his ballot the name of any person for whom he desires to vote if such name is not found printed thereon.

<p>1. An attorney agreeing, for a fixed fee, to foreclose a mechanic's lien and “to perform any and all work necessary in and for the complete foreclosure” thereof, is not required to defend, without additional compensation, a motion, not based upon his errors, to vacate the judgment or foreclosure obtained by him.</p> <p>2. In an action for legal services it appeared that plaintiff had agreed for $25 to foreclose a •mechanic’s lien. For successfully resisting a motion to vacate the judgment of foreclosure obtained by him he demanded additional compensation. The defendant claimed that the motion was based upon plaintiff’s errors, and showed that while it was pending he made an affidavit setting forth some mistakes in the proceedings. The plaintiff denied committing any errors. Held, that as the denial of the motion to vacate the judgment was prima facie evidence that plaintiff had committed no error, the evidence was insufficient to warrant an instruction denying additional' compensation.</p> <p>3. Where, in an action for legal services rendered in defending a motion to vacate a judgment of foreclosure obtained for a fixed fee, the verdict was for less than the amount claimed for compensation for such services, an instruction denying the right to compensation therefor was prejudicial.</p>

<p>Appeal from circuit court, Lawrence county, Hon. Joseph B. Moore, Judge.</p> <p>Action by the Troy Mining Company against Johnson G. Thomas, administrator of Thomas H. White, deceased,. From an ■order granting a new trial, defendant appeals.</p>

Joseph B. Moore, Judge. Action by Timothy D. Coleman against Peter Stalnacke to recover possession of certain realty and the value of its use and occupation. From a judgment for plaintiff, defendant appeals.

Original application for a writ of prohibition by the state, on the relation of H. N. Gates against Levi McGee, judge of the circuit court, and another. Where a court has obtained jurisdiction over the subject matter of any action it should be allowed to retain jurisdiction and its jurisdiction should not be interfered with by any court of concurrent jurisdiction.

<p>1. Comp. Laws, § 4465, providing that a negotiable instrument not specifying time of payment is payable immediately, is subject to Section 4571, declaring foregoing provisions as to the rights and obligations of the parties to contracts subordinate to their intention.</p> <p>2. A certificate of deposit, payable to the order of the depositor on' return of the certificate does not mature until so returned, and limitations do not run against it, nor can an action be maintained thereon, until demand; Comp. Laws, § 4570, declaring that a transferee of a certificate of deposit, “after its apparent maturity,” acquires title equal to that of a transferee before, contemplating a period of time between the issuance and the maturity of such certificate.</p>

<p>Appeal from circuit court, Clark county. Hon. Julian Be)nnltt, Judge.</p> <p>Action by L. Long against D. D. Collins, in which the First National Bank of Clark intervenes. Judgment for plaintiff. From an order entered upon the application of the intervenor, directing that judgment be set off in satisfaction of a judgment held by the intervenor against the plaintiff, the latter appeals.</p> <p>The facts are stated in the opinion.</p> <p>The exception must be taken at the time the decision is made, except as provided in Section 5080. This court'held “A judgment is deemed to have been excepted to under the first clause of Section 5080 Comp. Laws.”</p> <p>We contend that this final order falls in the same category; as, under the same clause, it is also “the final decision in an action or proceeding” of that part of the order appealed from. Smith et al. v. Commercial National Bank et al., 7 S. D. 468-469.</p> <p>A judgment for conversion of property except from execution, cannot be liquidated by having set off against it another judgment held by defendant as plaintiff’s creditor, the exemption attaches to the judgment for the proceeds of exempt property as well as the property itself. Cleveland v. McCanna, ( N. D.) ; 75 N. W. 908 and cases cited; Constitution of South Dakota, Art. 21, Sec. 4, Chap. 86 Session Laws S. D. 1890.</p> <p>Under our statute, and under the common law, we believe that courts of record are presumed to exercise a large discretion in either refusing or allowing mutual judgments to be set off in accordance with justice and equity, which action is always based upon the facts and circumstances involved in the case. 2 Freeman on Judgments, Sec. 467 a.</p>

F. G. Smith, Judge. Action by Katherine Kolbe against Frank Harrington; sheriff. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion.

, Poring E. Garry, Judge. Action by Frank E. Garvin against F. A. Pettee and another, from a judgment for defendants, and from an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

Joseph B. Moore, Judge. Action to vacate and set aside a tax deed by the Rector & Wilhelmy Company against Richard M. Maloney. Conditional judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.

Joseph B. Moore, Judge. Action by the Merchants National Bank against William R„ Stebbins and others. From a judgment in favor of defendants, plaintiff appeals. The facts are stated in the opinion.

<p>1. Service of summons by a minor who is an unofficial person is not good, under Comp. Laws, § 4899, providing service may he by the sheriff or any other person not a party to the action.</p> <p>2. Right to have action dismissed because the summons was served by a minor is not waived by an immaterial cross-examination of the person serving the summons, as to his citizenship and occupation, by defendant’s counsel, ■who appeared specially to move for dismissal for want of jurisdiction.</p>

'Hon. J. W. Jones, Judge. Action by I. D. Webster against Michael Lamb. From an order overruling a general demurrer to the complaint, defendant appeals. The rule is well settled that the penalty for doing an act, except m a way provided by law, amounts to a prohibition, and a contract which is derived from or is traced through such a service is illegal and void. Aetna Ins.

<p>Appeal from circuit court, Moody county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Anthon Schilling against S..E. Twitchell. Judgment for plaintiff. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>1. An objection that a complaint was not made a part of the affidavit for publication of summons, and that therefore the affidavit failed to show a cause of action against defendants, was untenable, where the affidavit referred to the complaint, and the order of publication recited that it was made on affidavit and complaint.</p> <p>2. Comp. Laws, § 494, provides for the appointment of notaries public who “shall have power * * * to administer oaths.” Section 503 requires the notary to provide an official seal, and deposit an impression with the secretary of the state. Section 504 requires him to deposit an impression of his seal, together with his official signature, with the clerk of the courts of his county. Section 501 provides that the notary shall keep a record of his proceedings, which record, “certified by the notary under seal,” shall be. competent to prove certain facts. Held, that the affixing by a notary of his seal to the verification of a complaint, not being expressly required by statute, was not absolutely essential to its validity as a verified complaint.</p> <p>3. The court sitting in a county in which a complaint is verified can take judicial notice of the fact that the notary whose name is subscribed to the verification is duly authorized to act as such.</p> <p>4. A publication of summons reciting the complaint as filed March 7th, whereas it was not in fact filed until March 8th, was not ground for setting aside a default, where the complaint was filed prior to the first publication, as required by Comp. Laws, § 4900, subd. 5, and the mistake in the summons could not have misled defendants.</p>

Hon. Joseph W. Jones, Judge. ' Action by Charles M. Harrison against the State Banking & Trust Company, a corporation. Judgment for plaintiff, and defendant appeals. The facts are. stated in the opinion.

Hon. Josupii W. Tonus, Judge. Action by Helen Bedtkey against Edward Bedtkey. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. If the slanderous words are alleged to have been spoken of the plaintiff, the action must fail, if spoken to the plaintiff. Cyclopedia of PI. & Pr. Vol. 13, p. 65, Sanford v. Gaddis, 15 111. 229; Becker v. Schiller, 49 111. Ap. 606; Williams v. Harrison, 3 iVlo. 411.

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>This case was first decided by this court in an opinion reported in 12 S. D. 535, 81 N. W. 952 in which opinion the judgment of the trial court in favor of the defendant was reversed. This' opinion is upon a rehearing subsequently granted.</p>

<p>1. Though, an undertaking on appeal is not sufficient as a statutory stay bond because of the omission of certain words, yet the sureties, having been required to justify in the sum of $2,000, and by its words having undertaken not only to pay costs and damages to the amount of $250, but the amount of the judgment, if it be affirmed, are charged with notice that they are executing something more than a cost bond, and are bound thereby as a common law undertaking, on evidence that it was treated by counsel as sufficient, and that execution was actually stayed thereby.</p> <p>2. Testimony of surety on an appeal bond, sufficient, by its terms, as a common law undertaking for payment of the judgment if it be affirmed, that at the time he signed it he was informed it was simply a cost bond, is inadmissible, it not being shown who so informed him, or that he relied on the statement.</p>

<p>1. An answer in’ a.n action on a fire policy which admits defendant’s incorporation and the issuance of the policy, but denies any knowledge or information sufficient to enable it to form a belief whether plaintiff ever owned the insured property, and which denies all allegations in the complaint not specifically admitted, and alleges plaintiff’s failure to submit proofs of loss and a certificate showing an examination of plaintiff under oath as to the loss, as required by the policy, is sufficient to put in issue the question of the ownership of the property, its loss, and whether plaintiff furnished proofs of loss and a certificate of examination.</p> <p>2. An answer that defendant has no knowledge or information as to a certain fact alleged in the complaint, sufficient “to enable it” to form a beliet, is good, as a denial of knowledge or information, though it does not follow the language of Comp. Laws § 4914, subd. 1, which provides that the answer shall contain a denial of the facts alleged in the complaint, or of any knowledge or information thereof sufficient to form a belief.</p> <p>3. The proof by uncontradicted -evidence on behalf of the plaintiff of an issue of fact raised by the pleadings does not authorize the court to take the issue from the jury.</p> <p>4. Where the pleadings in an action on a fire policy raise the issue whether proper proofs of loss were made, the fact that proof thereof may have been waived by a plea that the value of the property destroyed has never been ascertained in the manner provided for in the policy does not authorize the court to take the issue from the jury.</p> <p>5. The right of a defendant to have all the issues of fact submitted to the jury is not waived by his motion to direct a verdict, unless the plaintiff also asks a directed verdict.</p> <p>6. The failure to request instructions does not relieve the court from the duty of instructing on all the issues ,and an exception to an instruction limiting the jury to certain issues -is sufficient to authorize a review of the action of the court in failing to submit other issues.</p> <p>Fuller, J., dissenting.</p>

Appeal form circuit court, Pennington county. Hon. Levi McGee, Judge. Action by John G. Mattes against August Engel and another. Judgment for plaintiff. Defendants appeal. Both the pleadings and the evidence show a contract for a certain sum of money absolutely. The verdict in such a case must be for* the whole amount or nothing. The jury cannot in such a case take half of plaintiff’s theory and half of defendant’s and make a decision.

Hon. Julian Blnnltt, Judge. Action by George R. Finch and others, surviving partners of Finch, Van Slyck, Young & Co., against H. A. Park and another, partners as Park & Grant, defendants, and James W. Ask, intervener. From the judgment, plaintiffs appeal. Where one has money which in equity and good conscience belongs to another, that other may recover therefor in an action for money had and received. Finch et al. v. Park et al., 8o N. W. 155; Simes v. Pierre Sav.

Hon. Joseph B. Moore, Judge. Action by Raffaelo M. Pendo and another against Edward H. 'Beakey for the recovery of certain real property. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from circuit court. Lawrence county. Hon. Joseph B. Moore, Judge.</p> <p>Action by Raffaelo M. Pendo and another against James Blythe. From a judgment for plaintiffs, defendant appeals.</p>

Action by the city of Madison against John C. Horner for violation of an ordinance. On a judgment of the circuit court affirm-, ing a judgment of conviction, defendant brings error.

<p>Error to circuit court, Lake county.</p> <p>Action by the city of Madison against Ed Cameron. Judgment against defendant, and he brings error.</p>

Hon. Frank B. Smith, Judge! Suit by Edmund R. Persons against Florence Singletary, Lizzie M. Van Tassal, and others to quiet title to certain realty. From a judgement in favor of defendant Singletary, plaintiff appeals.

PIon. Joseph W. Jones, Judge. Action by Owen McCarrier against Fannie E. Hollister, to recover damages for injuries caused by falling in an open ditch on or near premisés owned by defendant and occupied by a tenant. Judgment for plaintiff, and defendant appeals. The parties in charge of the work were independent contractors. i Sher. & Redf.

<p>1. Comp. Laws, § 4277, declares that: “A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of t'he promiser, and need not be in writing: * * * Where the creditor parts with value or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms , or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety.” Defendant had a conversation with plaintiff with respect to building a house on a farm occupied by defendant’s brother, and plaintiff told defendant he could not build it on the brother’s account. Defendant thereupon told him to go .ahead and “I will see that you get your money.” Held, an original undertaking on defendant’s part, within the statute, and binding though not in writing.</p> <p>2. An objection that a contract of guaranty is void because not in writing, as required by the statute of frauds, cannot be raised for the first time in the supreme court.</p> <p>3. Under Comp. Laws, § 4934, providing that no variance between pleading and proof shall be deemed material unless the other party is actually misled to his prejudice, etc., an alleged variance should be disregarded by the trial court where the other party fails to suggest that he has been misled.</p> <p>4. Comp. Laws, § 5032, provides that an issue of law must be tried by the court, and that an issue of fact for the recovery of money only must be tried by a jury, unless a jury trial be waived as provided in section 5065. Section 5065 declares that “trial by jury may be waived by the several parties to an issue of fact in actions arising on contract or for the recovery of specific real or personal property with or without damages, and with the assent of the court in other actions," by written consent filed with the clerk. Held, not to require the court, without its consent, to try issues of fact in a common-law action, though the parties have, by written stipulation, waived a jury trial.</p> <p>5. Relieving the parties from a stipulation is within the discretion of the court, and will not be reviewed unless the discretion is abused.</p>

Hon. Loring E. Gaffy, Judge. Action by the Bohn Manufacturing Compan)'' against Stephen A. Keenan and others. From an order striking out a part of the answer as sham and irrelevant, defendants appeal.

<p>During the progress of a trial, defendant published in his newspaper the following article: “A Family Affair. * * * T'he trial judge and the sheriff are well-known popocrats. Caddy, the prisoner, belongs to the same party. The five witnesses for the defendant, who have been indicted for perjury, are all popocrats. The defendant’s lawyer is a lifelong democrat; and last, but by no means least, our informant says that every man out of the special venire of 24 is also a prominent pop or democrat. The only republican in the entire push is the prosecuting attorney. Such a political color to the affair seems strange, and the selection of that sort of a venire seems rotten.” Held, that such publication was not calculated to influence, embarrass, or obstruct the court in the due administration of justice, and defendant was not guilty of contempt of court in publishing the article.</p>

Hon. A. W. CampisERi., Judge. Mandamus by the state of South Dakota, on the relation of Hugh R. Cosper, against J. F. Porter, as sheriff of the county of Roberts, and others. From a judgment for plaintiff, defendants appeal. The county commissioners should have been made parties to this proceeding, City of Bangor v. County Commissioners, 32 At. 903.

Hon. Loring E. Garry, Judge. Suit by F. Peters against David M. Fell and others, to reform and foreclose a mortgage upon realty. From a decree for plaintiff, certain of the defendants appeal. Suit by F. Peters against David M. Fell and others. From a decree for plaintiff, certain of the defendants appeal.

Hon. Frank B. Smith, Judge. Action by John Q. Anderson against C. H. Jordan, as sheriff of Brule county, and others. From a judgment for defendants, and from an order refusing a new trial; plaintiff appeals.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by William H. Lyon against the Plankinton Bank and another. From a judgment for defendants, plaintiff appeals.</p>

Hon. Levi McGee, Judge. This case was first decided by this court in an opinion reported in 14 S. D. 33, 84 N. W. 211. In that opinion the judgment of the trial court giving certain liens priority over the mortgages was reversed. A rehearing was subsequently granted and this opinion is upon the rehearing.

Hon. A. W. Campbell, Judge. Mandamus by W. N. Coler and another against Edward Sterling, as treasurer, and others to compel the reception of certain school warrants in satisfaction of school taxes. From a judgment in favor of plaintiff defendants appeal.

<p>1. A tax list as follows:</p> <p> </p> <p>—does not sufficiently describe the latter tract, the failure to give the section, township and range and the phrase, “Less R. W. D. C. Ry.” rendering the description unintelligible.-</p> <p>2. A notice of expiration of redemption from a tax sale which omits to give the section, township or range of the property is not a compliance with Sess. Laws 1891, Chap. ,14, § 121, requiring the notice to contain a description of the property sold, etc.</p> <p>3. Under Sess. Laws, 1891, Chap. 14, § 118, providing that “the owner or occupant of lands sold for taxes or any other person may redeem the same at any time within two years or at any time before the execution of a deed by the county treasurer,” a tax deed issued after the redemption of the property is void.</p> <p>4. A tax deed, though void on its face, constitutes color of-title, and the real owner is entitled to have it canceled.</p>

■Appeal from circuit court, Beadle county. ■ Hon. A. W. Campbell, Judge. Action on an attachment bond by LeRoy Jencks and Charles A. Johnson against John Murphy, Thomas J. Murphy, and others. From a judgment in favor of defendants, plaintiffs appeal.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Mary C. Murphy against the Plankinton Bank and another. From a judgment for defendant, plaintiff appeals.</p>

Hon E. G. Smith, Judge. Action by Annie Mach against William Blanchard for the cancellation of a mortgage. From a judgment in favor of the plaintiff, the defendant appeals.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Joe Kirby against W. G. Berguin upon a promissory note.' From a judgment in favor of defendant, pláin'tiff appeals.</p>

<p>1. In an action against a bank on a certificate of deposit for $695, brought by tbe bolder, tbs payee intervened, and claimed that it bad been obtained from him by fraud by a gambler, who indorsed it to plaintiff for $50. Plaintiff was acquainted with such gambler to tbe extent that he went on the latter’s appearance bond when he was arrested two days later on intervener’s complaint. The jury returned a general verdict in favor of intervener and against plaintiff, but in answering special interrogatories stated .that plaintiff, at the time he took the certificate of deposit, did not have any notice or knowledge that his indorser, the gambler, had obtained it by fraud and without consideration. Held, that under Comp. Laws, § 4739, providing that good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, together with an absence of all information or belief of facts which would render the transaction unconscientious, the plaintiff was not a bona fide purchaser of the certificate, notwithstanding the special verdict that plaintiff was without knowledge of the fraud, and hence was not entitled to recover.</p> <p>2. One who has been defrauded out of a certificate of deposit by a gambler is not estopped from denying the title of the indorsee of such gambler (the indorsee not being a bona fide purchaser) by the fact that he was present when the transfer was made and made no objections; his presence being merely an incident to the scheme to defraud.</p>

On rehearing. Appealed from circuit court Custer county. Hon. Devi Mc-Gll, Judge. This case was first determined by the court in an opinion reported in 14 S. D. 90, 84 N. W. 393. In that opinion the judgment of the trial court creating a judgment of a justice of the peace was reversed. This opinion is upon a rehearing subsequently granted.

Hon. Loring E. Gaeey, Judge. Action by John E. Hughes against Wilber E. Rudy, to recover upon a contract for services as an attorney. Judgment for plaintiff and defendant appeals.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Sibb Peterson against Olga Peterson. From an order setting aside a default, plaintiff appeals.</p>

<p>1. A bank has power to act as agent in the collection and remission of money, though it he due and payable under a lease.</p> <p>2. The presumption is that the cashier of a hank, in receiving money due one on a lease and depositing it subject to his check, is acting officially, rather than individually.</p>

<p>Appeal from circuit court, Hughes county. Hon. Doring E. GaEEy, Judge.</p> <p>Action , by Lizzie Dennett and another against Michael Reisdorfer and others. From a judgment for plaintiffs, defendants appeal'.</p>

Hon. Frank Washabaugh, Judge. Action by James F. Edmonds against Peter C. Riley. Judgment for defendant, and plaintiff appeals. A judgment cannot be entered nunc pro tunc, unless supported by record evidence; that is such a record as will be recognized by the court, and cannot rest in parole. Black on Judgments, Sec. 135; Hegeler v. Henckell, 27 Cal. 491; Draughan v. Bank, 18 Am.-Dec. 38; Hudson v. Hudson, 56 Am. Dec. 200; Metcalf v. Metcalf, 54 Am.

Hon. Frank J. Washabaugh, Judge. Action by Joseph H. Harmon against Oscar Silver to recover for goods and merchandise sold and delivered. Judgment for plaintiff, and defendant appeals.

court, Beadle county. Hon. A. W. Campbell, Judge. Action by Maris Taylor against A. Vandenberg and others for an injunction to restrain the issuance of a tax deed to certain realty. Judgment for defendants and plaintiff appeals.

Hon. E. G. Smith, Judge. Action by the Yankton Savings Bank and William Hickey, as sheriff of Yankton county, against A. W. Petterson, in which plaintiffs recovered judgment. Afterwards defendant died, and G. Gutterson, his administrator, was substituted by order of the court. Order dissolving an attachment obtained against Petterson’s property, and plaintiffs appeal.

Hon. E. G. Smcth, Judge. Action by Bon Homme county, South Dakota, against Fried-rich Berndt and another. From a judgment for the plaintiff, the defendants appeal.

Hon. Boring F. Garry, Judge. Action by the Chicago & Northwestern Railway Company against the county of Faulk and William H. Smith, treasurer thereof for an injunction restraining the selling of certain realty for taxes. Judgment for plaintiff, and defendants appeal.

Hon. Loring E. GaFFy, Judge. This case was first determined in this court in an opinion reported in 14 S. D. 169, 84 N. W. 771, in which opinion the judgment of the trial court in favor of defendant was affirmed. This opinion is upbn a rehearing subsequently granted.

<p>1. In an action for the value of personal property which plaintiff was to receive from the owner of a store property for effecting an exchange of land of defendant for the store property, and which plaintiff had not received because defendant refused to complete the trade, the issue being whether plaintiff had acted as defendant’s agent, it was not error to refuse to permit plaintiff to testify that defendant instructed an agent of his by letter not to pay plaintiff anything, the nonproduction of the writing not being accounted for, and it being the best evidence.</p> <p>2. Any error in the ruling was harmless, plaintiff having testified that defendant refused to pay him anything.</p> <p>3. Evidence as to the value of the land was properly excluded as immaterial.</p> <p>4. It was proper to exclude evidence that it is the custom of land agents to get the best possible terms from the owner, and then get all possible from the other party.</p> <p>5. Where prior to the second trial of a case, the plaintiff had died, and it was stipulated that the testimony of plaintiff and defendant might be read in evidence, the stipulation did not prevent the defendant from testifying.</p> <p>6. Where there is offered in evidence a writing purporting to be a copy of a telegram from plaintiff to defendant, and it is shown that the copy had been put in evidence without objection at a former trial, and that a letter to plaintiff acknowledged a telegram reading the same as the copy, it was proper to admit the copy.</p>

<p>3. Where a purchaser at a second mortgage sale, of which the third ' mortgagee had no notice, which fact was not Known to the purchaser, purchased a release of the first mortgage, and subsequently sued to be subrogated to the rights of the first and second mortgagees, that he was a stranger to the matters at the time of his purchase was no bar to relief.</p> <p>2. Plaintiff’s complaint having alleged that he believed the third mortgagee had been duly served with summons, the complaint showed a mistake of fact on plaintiff’s part.</p> <p>3. The complaint having alleged that the mortgagor had left the country, insolvent, the complaint was not demurrable as disclosing no lack of an adequate remedy at law.</p> <p>4. The complaint was not insufficient for not alleging that the mortgag- or owned the property since, it being alleged that he executed the mortgages, and all the parties claiming under them, it would be presumed he was the owner.</p> <p>5. Where one purchased at a second mortgage sale, of which the third mortgagee had no notice, which fact was unknown to the purchaser, who subsequently secured a release of the first mortgage, and 10 years after the purchase sued to be subrogated to the rights of the first and second mortgagees, the suit was not barred by laches, it not being shown that the third mortgagee had suffered by the delay.</p> <p>6. It appearing that the third mortgagee’s position was the same as when his security was taken, and that no third party would be injured by the subrogation, plaintiff was entitled to the relief sought.</p>

Hon. Levi McGee, Judge. Suit by the Lone Tree Ditch Company and others against the Cyclone Ditch Company and others. From a decree in favor of the defendants, the plaintiffs appeal.

<p>1. Under Comp. Laws, § 4938, providing the court may allow the amendment of a pleading by the addition of allegations, it was proper to allow such an amendment to a complaint where it stated no new cause of action, as evidenced by the fact that a recovery under the original complaint would have been a bar to a recovery under the complaint as amended.'</p> <p>2. Comp. Laws, § 4911, providing that, if the complaint be amended, a copy thereof must be' served on defendant, who must answer within 30 days, applies only to complaints amended after a demurrer to the same has been sustained, and has no application to an amendment made in the action by order of the court.</p> <p>3. Where a notice of motion for leave to amend a complaint was served 10 days before term, and the trial was had on the eighth day of the term, and it was not shown by defendants’ affidavit for a continuance that there were absent witnesses whose testimony could not be obtained, nor that defendants were surprised, though it appeared counsel were busy in the trial of cases, and had no time to prepare the required answer, a continuance was properly denied.</p> <p>4. Comp. Laws, § 5034, provides for the giving of notice of trial and filing of a note of issue, and that “there need be but one notice of trial and one note of issue from either party, and the action must remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice.” Held, that after the filing of an amended complaint it is not necessary to serve another notice of trial and note of issue.</p> <p>5. In claim and delivery by the seller of a threshing machine against the purchaser, on the latter’s failure to give notes and mortgage therefor as agreed, defendants set up an estoppel in that defendants had paid freight on the machine with knowledge of plaintiff’s agent, and with knowledge of such agent had taken possession of the machine, and expended money in repairing the 'same. Held, that a demurrer to the defense was properly sustained, defendants having agreed ,to pay the freight, and the improvements on the machine not seeming to have been required by defects therein.</p> <p>6. Since defendants were seeking to charge plaintiffs by the acts of their agent, it was proper to admit in evidence the agreement under, which the agent was authorized to act as agent and containing his instructions.</p> <p>7. Comp. Laws, §§ 3643, 3644, provide that a buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it; and on an agreement for sale, with warranty, the buyer has a right to inspect the thing sold for a reasonable time before accepting it. The puchaser of a threshing machine gave the seller an old machine in part payment, and agreed to give notes and a mortgage for th'e balance. The purchaser paid the freight on the new machine, and on its arrival unloaded it, and ]jut the same in running order, but ref used, to give the notes and mortgage. Held, on claim and delivery for the machine by the seller, that there had been no delivery.</p> <p>8.. The machine not having been delivered, defendants were not entitled to compensation for the use of the machine for the time, it was held by the sheriff.</p> <p>9. Where an agent for the manfacturer of threshing machines falsely represents to a purchaser that the machine purchased is shipped and on the way, and relying on such statement, the purchaser delivers an old machine in part payment, the seller is not liable for damages to the purchaser from loss of the use of the old machine while waiting for the arrival of the new one, in the absence of a showing that the agent had authority to make such representation, or that the seller knew of the representation, and it appearing that the instructions to the agent forbade any agreement to deliver on any particular day.</p>

<p>Appeal from circuit court, Hutchinson county. Hon. E. G. Smith, Judge.</p> <p>Action by George Friedrich against Anthon Fergen. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Turner county. Hon J. W. Jones, Judge.</p> <p>Action by the Dowagiac Manufacturing Company against William Higinbotham. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. An acknowledgement of receipt of a copy of chattel mortgage, indorsed on the mortgage bel'ow the mortgagor’s signature, is not a sufficient compliance with the Laws, 1897, Chap. 95, § 2, making a chattel mortgage void unless it appears upon the mortgage instrument, over the mortgagor’s signature, that he received a true copy of such instrument.</p> <p>2. Subsequent mortgages and attaching creditors may attack a chattel mortgage for noncompliance with Laws 189/, Chap. 95, § 2, providing that a chattel mortgage shall be void unless it appears upon the mortgage instrument, over the signature óf the mortgagor, that he received a copy thereof.</p> <p>3. Where, in an action of claim and delivery, an affidavit offered as to ihe value of the property offered in evidence by plaintiff was admitted without objection, and defendant offered no evidence to contradict it, plaintiff was precluded from showing that the property was of a less value than that specified in such affidavit, though defendants had in their pleadings denied such valuation, and alleged a different one.</p> <p>4. An objection that a mortgage instrument offered in evidence was incompetent, immaterial, and irrelevant, and that it had no reference to the property in controversy, is insufficient to raise any question as to its execution.</p> <p>5. Under Comp. Laws, § 4309, providing- that a surety is entitled to the benefit of every security held by the creditor or a co-surety, where the maker of a collateral security note given to further secure the payment of another’s note, already secured by a mortgage, pays the collateral note, and takes an assignment of the original note and the mortgage, such note and mortgage may be enforced by such assignee.</p> <p>6. Where plaintiff in an action of claim and delivery disposes of the property prior to the trial, defendant, if he prevails in the action, is entitled to a money judgment for the value of his interest in or claim against the property to the extent of the value thereof as shown by the evidence.</p>

Hon. Boring E. Garry, Judge. , Injunction by the state, on the relation of Hattie B. E. Brown, and by.her individually, against the city of Pierre. From a judgment for defendant plaintiff appeals. An answer denying each and every allegation of the complaint not thereinafter specifically denied, admitted or explained is insufficient as a pleading. § 4914 Comp. Laws; People v. Railroad, 53 Bart. 98; McEmeror v. Decker, 58 How.

Hon. Loring E. Gaeey, Judge. Action by the Dyea Electric Light Company against Mrs. E. A. Easton and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>1. Though, by statute,, findings of fact by the trial court are not as controlling upon the appellate court as the verdict of a jury, they are presumptively correct, and must stand unless the evidence clearly preponderates against them.</p> <p>2. Where plaintiff in a mortgage foreclosure suit makes a third party a party defendant, alleging that such party has or claims to have some right or interest in the mortgaged premises, but that such right or interest is subordinate to plaintiff’s mortgage, such party has a standing in court to resist the enforcement of plaintiff's alleged lien without establishing his own.</p>

<p>1. On a prosecution for incest, the admission of evidence of statements made in defendant’s absence by tbe woman with whom the crime was charged to have been committed, just after she had given birth to a child, that defendant was the father of the child, and of her confession, in defendant’s absence, after she had been arrested for the same crime with which defendant was charged, that she and defendant were guilty of such crime, was reversible error, though the court subsequently instructed the jury not to consider such evidence.</p> <p>2. On a prosecution for incest, evidence of the 'mutual conduct of the parties to the crime charged prior thereto is admissible, but not of their conduct thereafter.</p>

Hon. A. W. Campbell, Judge. ; Suit by Sarah L. Lee and another against the town of Mellette and another. From a decree for complainants, defendants appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by the Iowa and Dakota Telephone Company against John Schamber, state treasurer. From an order sustaining a demurrer to the complaint, plaintiff appeals.

HoN. Joseph W.. Jones, Judge. Action by Benedict Reichelt and another against George H. Perry and another. From a judgment for defendants, plaintiffs appeal. The issues raised by the defendants’ counterclaim and reply thereto, were one of law and not of chancery, and under the constitution and laws of this state the court had no power to ignore the verdict of the jury and treat this branch of the cause as one in chancery.

Hon. A. W. Campbeu,, Judge. Action by E. Loomis against Brown county on liquor prosecution fund warrants. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Clark county. Hon. Julian Bennett, Presiding Judge.</p> <p>Action by Hanna Nordin against Theodore T. Berner and others. Judgment for plaintiff. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to circuit court, Kingsbury county. Hon. Julian Be;nnltt, Judge.</p> <p>Fred W. Page was convicted of riot and brings error.</p>

Appeal form circuit court, Minnehaha county. Hoisr. Joseph W. Jones, Judge. Action by Dorthea Bohl against the city of Dell Rapids. From a judgment in favor of defendant, plaintiff appeals.

<p>Error to circuit court, Minnehaha county. Hon. Loring E. Garry, Presiding Judge.</p> <p>Samuel H. Wright was convicted of embezzlement, and he brings error.</p> <p>The facts are stated in the opinion.</p>

Hon. Julian Blnnltt, Judge. Action by Joseph W. Catlett against W. H. Stokes. From order granting a new trial, defendant appeals. The facts are stated in the opinion.

<p>Error to circuit court, Lyman county. Hon. Frank Smith, Judge.</p> <p>Peter A. Bergland was convicted of grand larceny, and appeals.</p>

<p>1. A certificate, executed by a buyer of machinery warranted to do a certain amount of work that the machinery was working satisfactorily up to date, did not preclude him from thereafter showing that he was mistaken, and that the machinery did not, in fact, comply with the warranty.</p> <p>2. Where a buyer of warranted machinery, under an agreement stipulating that six days’ possession and use of the machinery should be conclusive evidence that it complied with the warranty, kept and used such machinery six days, it was competent for an assignee of the purchase money notes and the mortgage given to secure them to waive such stipulation, and agree to take back the machinery if it did not comply with the warranty.</p> <p>3. Where, in an action of claim and delivery for the possession of machinery and other personal property claimed by plaintiff under a mortgage given by defendant to secure- the price of the machinery, it appeared that defendant was entitled to rescind the sale for breach of warranty, and, further, that he had not refused to surrender the machinery to plaintiff upon his demand at or about the time of the institution of the suit, costs were properly awarded against plaintiff.</p> <p>Fuller, J., dissenting.</p>

Hon. E. G. Smith, Judge. Action by E. M. Doyle against Charles L. Edwards, as administrator of Vito Francisco Crisci, deceased. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.