Volume 15 — Wyoming Reports

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. Held: in nearly all the states, that when it attempts to act, jurisdiction must appear upon the record kept of its action. (Com. v. Fay,'126 Mass., 235; Storm v. Adams, 56 Wis., 137; Graver v. Fehr, 89 Pa.

Charlrs W. Bramrl, Judge. The material facts are stated in the opinion.

Richard H. Scott, Judge. The material facts are stated in the opinion.

Charles E. CarpENTEr, Judge. Henry E. Clay was tried upon an information charging him with murder in the first degree for the killing of one George Gerber. Held: in this error proceeding, to have been erroneously admitted. Counsel cited, in addition to the authorities mentioned in his original brief, the following cases: People v. Barrie, 49 Cal., 342; Green v. State, 88 Ga., 516; Kelly v. State, 72 Ala., 244; Sorenson v. U. S., 143 Fed., 820.

Charles E. CARPENTER, Judge. The material facts are stated in the opinion. The only question involved is whether the school district, which lies within the limits of the Shoshone Indian Reservation, was or was not, for that reason, lawfully organized. It was sought by the petition in the case to question the right to organize a school district upon an Indian reservation. The state was admitted with certain geographical boundaries.

Richard H. Scott, Judge. This action was brought by Walter R. Stoll against Emma J. Nagle and others to reform a deed in the matter of description, and for other purposes. From a judgment denying reformation the plaintiff prosecuted error. The facts are stated in the opinion. If a mere denial of the existence of the mistake by the grantor is all that is necessary to show that the mistake was not mutual, then no instrument could ever be reformed in which such denial was made.

Carroll H. Parmblbe, Judge. The facts are stated in the opinion. The fact that one is a stockholder in a corporation does not give him a right to inspect its books and papers without a showing of some good and sufficient reason therefor, such as fraud or mismanagement, or that some substantial right has been denied him resulting in material injury to his interests.

Charles 'E. Carpenter, Judge. Action brought by Frank A. Mau against John W. Stoner,, Aaron Stoner and Victor Forgeon. From a verdict and judgment in favor of defendants, the plaintiff brought error. The facts are stated in the opinion. The gist of the action is the destruction of plaintiff’s crops, not the wrongful diversion of the water; the injury was the combined result of the diversions of the water of plaintiff by the defendants at divers times.

Exceptions by Prosecuting Attorney to rulings in a criminal case, in the District Court, Sheridan County, Hon. Carroll H. Parmelee, Judge. The facts are stated in the opinion. Serious doubts have been entertained as to the validity and constitutionality of the statute regulating the hours of labor by miners and laborers employed in coal mines.

Charles E. Carpenter, Judge. Stephen A. Mills, as trustee in bankruptcy of the estate of Fred Lellman, a bankrupt, brought the action against the bankrupt and another to cancel a chattel mortgage executed to the latter by the former upon property alleged to be property of a partnership composed of said bankrupt and one James Hackman. From a judgment in favor of the plaintiff the defendants prosecuted error. The facts are stated in the opinion.

David H. Craig, Judge. Action upon a prommissory note and to foreclose a chattel mortgage upon partnership property. From a judgment for plaintiff defendants brought error. The facts are stated in the opinion. The mortgage in controversy was void and incapable of ratification. (R. S. 1899, Sec. 2808; Ridgley v. Bank, 75 Eed., 808.) It was not, however, ratified or attempted to be ratified in fact.

David H. Craig, Judge. Aaron Slothower having applied through the United States Land office for.a patent to a mining- claim, an adverse claim was filed by F. E. Hunter, R. F. Jones, H. L-Kuykendall and A. M. Woodruff, and they brought suit in support of such adverse claim. From a judgment awarding the plaintiffs a portion of the ground, the defendant prosecuted error. The facts are stated in the opinion.

David H. Craig, Judge. Suit brought by Katie Leisburg against Sarah T. Field-house involving the title and right to possession to a part of a town lot, which the plaintiff claimed by adverse possession. Verdict and judgment for plaintiff. Defendant brought error. The facts are stated in the opinion.

David H. Craig, Judge. J. W. Card brought suit against Charles Harden to recover a sum of money alleged to be due for wages. After verdict and judgment for plaintiff, the case was taken to the Supreme Court on error by the defendant. The facts are stated in the opinion. In view of several facts in the case fully proven or admitted on the trial, the claim of the plaintiff is so incredible that no verdict should be permitted to rest upon it.

Carroll H. Parmelee, Judge. Suit by Alice Wallace for personal injuries caused by an alleged wild and dangerous elk owned and kept in captivity by the defendant, Charles W. Skinner. The vicious nature of the animal was denied, and by way of separate defense a settlement of the claim sued on was pleaded. Judgment for defendant. The plaintiff prosecuted error, but the evidence was not brought into the record. The facts are stated in the opinion.

Roderick N. Matson, Judge. J. W. Long was convicted of grand larceny, and prosecuted error. The material facts are stated in the opinion. The verdict is uncertain as to value. It is insufficient because general and not responding to each count in the information.

David H. Craig, Judge. Oscar L- Delmont was. convicted of burglary. The material facts are stated in the opinion.. The jury list was illegal in that it did not contain the names of any qualified jurors from a large section of the county. (State v. Bolin, 10 Wyo., 439.) The verdict is not sustained by sufficient evidence. The' evidence fails to establish a burglary.

David H. Craig, Judge. Action by J. S. Stanley against William Collins and Mrs. J. W. Card to recover damages for an alleged wilful and malicious trespass upon certain premises of plaintiff, and for consuming and destroying certain personal property thereon, and for an injunction against a continuance of the alleged trespass.

David H. Craig, Judge. Clarence Walton sued Karl Spinner in justice court, and judgment was rendered for the defendant. The plaintiff appealed to the District Court, where the appeal was dismissed for the failure of the return and transcript to show what pleadings, if any, were made or filed, or what, if any, issue was tried in the justice court. A motion for a rule upon the justice to amend his return and transcript was denied.

David H. Craig, Judge. The action was brought by S. Schiller against the Blyth & Fargo Company, a corporation, to recover a sum alleged to be due upon the sale of merchandise. Judgment for defendant. Plaintiff instituted proceedings in error. The material facts are stated in the opinion. The evidence that plaintiff complied with his contract stands uncontradicted, and he was entitled to a judgment for the amount claimed.

David H. Craig, Judge. Theodore O. Loveland and James L. Records, co-partners, doing business as the Equitable Manufacturing Company, brought this action against the Frontier Supply Company, a corporation. Judgment was rendered for the plaintiffs, and defendants brought error. The material facts are stated in the opinion.

David H. Craig, Judge. Habeas corpus, for the custody of minor children. The case and material facts are stated in the opinion. An affidavit of a witness taken without notice to the opposite party is not admissible' on a' hearing in habeas corpus.

Carroll H. Parmelee, Judge. , E. Denebrink, a physician, sued the County of Sheridan for medical and surgical services performed for a nonresident person without means, who had been seriously injured in the county and required immediate attention at the hands of a physician to save his life. A demurrer to the petition was overruled, whereupon the defendant refused to further plead and judgment was rendered for the plaintiff. The defendant prosecuted .error.

Carroll H. PArmrlrr, Judge. The material facts are stated in the opinion. The plaintiff was never in a position to make a sale. He was unacquainted with the terms of sale, and did not make it. The only information the purchaser received from the plaintiff was the price, nothing as to terms. In addition to that the purchaser had theretofore been communicating with the owner and later fixed the terms and made his agreement with the owner.

Charles E. Carpenter, Judge. Action for the reformation of a written contract and its enforcement according to the agreement claimed to have been actually entered into. The material facts are stated in the opinion.

David H. Craig, Judge. Action brought by Annie Pardee against Charles F. Kus-ter, Frederick Reinsberg, and Rudolph Abrams, as executor of the will of Charles Kuster, deceased, to establish an alleged lost, will devising certain property to the plaintiff. Judgment was given for the defendants, and plaintiff prosecuted error.

Carroll H. Parmelee, Judge. Proceeding under the statute to vacate a judgment. The facts are stated in the opinion.

<p>Error to the District Court, Weston County, HoN. Carroll H. Parmelee, Judge.</p>

. Error to the District Court, Albany County, Hon. David H. Craig, Judge. The facts are stated in the opinion. The mortgage was given upon an illegal consideration, and is to be governed by the laws and decisions of California, where it was made. (Cashman v. Root, 89 Cal., 373; Witmore v. Barratt, 103 Cal., 325; Speedy v. Shinn, 103 Cal., 430; Reed v. Cooper, 119 Cab, 463; Hullman v. Simmons, 104 Cal., 595; Parker v. Otis, 130 Cal., 322 (187 U. S., 596); Const.

David H. Craig, Judge. . Information under Section 2572, Revised Statutes, 1899, charging Neis Koppala and Isaac Lampe with the offense of intentionally entering an unsafe place in a certain coal mine (Hanna Mine No. 1, Carbon County) against the caution of the mining boss, thereby endangering the lives and health of persons employed in the mine and the security of the mine and machinery therein. The material facts are stated in the opinions.

Carroll H. Parmelee, Judge. Action for the dissolution of a partnership b.etween G. W. Waisner and W. E. Waisner, the plaintiffs, and J. A. Waisner, the defendant, an accounting, and a division of property and proceeds. Pending the suit, and after issues had been joined, the parties submitted their matters of difference to arbitration.

Original proceeding in mandamus brought in the name of the State on the relation of Dimond Brothers, a partnership, against David H. Craig, as District Judge, to compel the settlement and signing of a proposed bill of exceptions. The case was heard upon demurrer to the answer. The facts are stated in the opinion. The principal errors complained of as having occurred upon the trial of the cause in question arose upon objections to testimony.

David H. Craig, Judge. .The facts are stated in the opinion. With the judgment in the main suit and the overruling of the motion for new trial the case was terminated, and the court lost jurisdiction, and the liability for costs was settled. (3 Ency. D., 184; 5 Ency. PI. & Pr., 109.) The first állowance of the sheriff’s expenses amounted to a judgment' against defendant, and the motion to vacate should have been made within ten days.

Carroll H. Parmrlrr, Judge. Noah T. Richardson, having been convicted of murder in the first degree, instituted proceedings in error within the time prescribed by statute therefor, and pending the same, moved that a new trial be granted on the ground that he had been prevented from having the necessary bill of exceptions signed and from perfecting the necessary record for a review of the judgment complained of, without fault on the part of himself or counsel.

Charles E. Carpenter, Judge. H. C. Dunning sued W. M. Eggart in justice court in Sheridan County to recover a money judgment. After rendition of judgment for plaintiff the defendant sought to appeal to the District Court. The appeal was dismissed by the latter court for the failure of the appellant to file with the justice a written notice of his desire to appeal. The appellant thereupon prosecuted proceedings in error. The material facts are stated in the opinion.

Carroll H. ParmRlRR, Judge. The material facts are stated in the opinion. argued and contended that the failure of the railroad company to keep its right of way fence in repair, knowing its bad condition, and that animals were liable to get upon the right of way through the defective fence and be killed, constituted negligence, rendering it liable for the damages sued for, citing, Big Goose & B. D. Co. v. Morrow, 8 Wyo., 537; Ry. Co. v. Ives, 12 Sup. Ct. Rep., 679; Ry.

Carroll H. ParmRlRR, Judge. The material facts are stated in the opinion. The ex parte order allowing compensation to the receiver was without jurisdiction. The stockholders of the insolvent corporation were entitled to' notice of the receiver’s application. (Alderson on Receivers, 859; Bank v. Crysler, 67 Fed., 388; Bank v. Frankenthal, 55 Ill.

David H. Craig, Judge. The material facts are stated in the opinion. argued and contended that the instructions erroneously stated the law of the case, and that error was also committed in refusing to instruct as to exemplary damages, citing Cosgriff v. Miller, 10 Wyo., 190. contended that permanent damage to the realty is alleged, which is only recoverable bjr the holder of the legal title; and that the tenant is the partner holding the lease, not the firm.

Richard H. Scott, Judge. Heard on motion after default for an extension of time to file and serve briefs of plaintiff in error. The facts are stated in the opinion. Having power to adopt a rule, the court has power to revoke it at will, and also to modify it for the purpose of a certain class of cases; and to make special rules for the government of each cause, as the exigencies thereof may demand.

<p>Briefs — Default—-Extension of Time — Sickness of Counsel.</p> <p>1. The serious illness of sole counsel for plaintiffs in error, who were out of the state and without knowledge of their counsel’s illness and incapacity until after default occurred in filing and serving briefs, held sufficient cause for extending the time for briefs, upon motion’filed after default and in the absence of a motion to dismiss.</p>