Volume 16 — South Dakota Reports

Hon. Jos. W. Jones, Judge. Action by Maggie Cole against W. L. Baker to recover the value of a certain promissory note alleged to have been converted by defendant. From a judgment in favor of defendant, plaintiff appeals.

<p>Error to circuit court, Hamlin county. Hon. L. E. Gappy, Judge.</p> <p>Thomas Hall was convicted of murder and appeals.</p>

Hon. Frank B. Smith, Judge. Action by the Epiphany Roman Catholic Church against the German Insurance Company to reform a certain policy of insurance and to recover the amount of insurance provided for therein. From a judgment for plaintiff, defendant appeals. Plaintiff failed to give immediate notice of loss as required by the policy. Such notice was a condition precedent to any action on the policy, and must be strictly complied with. Ermentrout v. Ins.

Hon. Jul-an Bennett, Judge. Action by Edward W. Heyler against the city of Water-town. Prom a judgment for defendant, plaintiff appeals. The city of Watertown being a chartered city and existing under a special charter is not governed by chapter 150, Session Laws of 1893, but is governed by the special act incorporating the city of Watertown and in the construction of sewers is governed by subdivision 9 of section 7, of the charter.

Hon. Joseph B. Moore, Judge. This case was first decided by this court in an opinion found in 14 S. D. 543, 86 N. W. 626, in which, opinion the judgment of,the trial court in favor of defendants was reversed and the case remanded for a new trial. Subsequently a rehearing was ordered. This opinion is upon the rehearing The former decision is adhered to.

Hon. Julian Bennett, Judge. Action by Emma Patterson against the Jos. Schlitz Brewing Company to recover damages for the death of plaintiff’s husband who was killed by the falling of a building belonging to defendant. Judgment for plaintiff. Defendant appeals.

Hon. E. G. Smith, Judge. Action by Frances L. Pierson against William Hickey, as sheriff of Yankton county to recover possession of certain personal property. From a judgment for plaintiff, defendant appeals.

Hon. Joseph B. Moore, Judge. Action by the bank of Spearfish against W. H. Graham to recover upon certain promissory notes; judgment for plaintiff, and from an order overruling a motion for a new trial defendant appeals.

Hon. Frank B. Smith, Judge. Action by Henrietta Doering' against Thormina Jensen. Judgment was rendered against defendant in justice court, and sbe appealed to the circuit court; and from an order dismissing the appeal, and refusing her motion to be allowed to amend the appeal bond, she appeals.

<p>Error to circuit court, Charles Mix. county. Hon. ■ E. G-. Smith, Judge.</p> <p>William Vincent was convicted of grand larceny, and brings error.</p>

Hon. Levi McGee, Judge. Action by Edmund S. Kelly and others against the Fargo Mercantile Company and others. From an order appointing a receiver, pendente lite, of, defendant corporation’s property, defendants appeal.

<p>. Error to circuit court; Hamlin county. Hon. Julian Bennett, Judge.</p> <p>Lewis McDonald was convicted of arson and brings error.</p>

Hon. A. W. Campbell, Judge. Petition by William Oehler and others to disconnect and exclude certain property from the corporate limits of Big Stone City. From a judgment in favor of plaintiffs, the city appeals.

Hon. A. W. Campbell, Judge. Action by Seelye A. Cook and others against John Sheehan and others to recover for goods and merchandise alleged to have been sold and delivered to defendants. From a judgment for defendant, plaintiff’s appeal.

Hon. Joseph W.'Jones, Judge. Action by James Wilson against Walter H. McWilliams to redeem certain premises alleged to be held by defendant as mortgagee. From a judgment for defendant, plaintiff appeals.

<p>Appeal from circuit court, Roberts county. Hon. A. W. Campbell, Judge.</p> <p>Action by C. William McGray against the Monarch Elevator Company to recover a tract of land. From a judgment for defendant, plaintiff appeals.</p>

Hon. A. W. Campbell, Judge. Suit by Margaret E. Cornelius against Allie E. Ferguson and another to quiet title in certaimreal property. Elsie Lynch intervening. From a decree for intervener, defendants appeal.

Hon. E. G. Smith, Judge. Action by Mary A. Stafford against Henry Levinger and others to recover damages alleged to have been sustained by her in her means of support, by the death of her husband as a result of intoxication produced by liquor sold to him by the defendant. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals.

Hon. A. W. Campbell, Judge. Action by the F. C. Austin Manufacturing Company against Twin Brooks township, Grant county to recover the value of a road machine. From a judgment for plaintiff, defendant appeals.

' Appeal from circuit court, Hughes county. Hon. Loring E. Gappy, Judge. Action by Charles L. Hyde against Adolph Ewert, mayor of the city of Pierre, and others. Judgment for defendants, and plaintiff appeals.

Hon. A. W. Campbell, Judge. Petition by Henry Camus and others to disconnect and exclude certain property from the corporate limits of Big Stone City. From .a judgment for plaintiffs, defendant appeals.

<p>Appeal from circuit court, Hughes county. Hon. Loring E. Gappy, Judge.</p> <p>Action by Adolph Ewert against John E. Mallery, .president of board of education of the city of Pierre, and others. Judgment for defendants. Plaintiff appeals.</p>

Hon. Joseph B. Moore, Judge. Action by the city of Lead against Jacob Klatt and others for the violation of a city ordinance. Judgment for defendants. Plaintiff appeals.

Hon. E. G-. Smith, Judge. Application by the Theo. Hamm Brewing Company against Benjamin C. Foss and others for mandamus to .compel defendants to issue to plaintiff a wholesale license for the maintenance of a warehouse for the sale of malt and brewed liquors. From a judgment for defendants, plaintiff appeals.

E, G. Smith, Judge. John Pritchard was convicted of furnishing spirituous liquor to one who was in the habit of getting intoxicated, after written notice of such habit, and brings error.

<p>Error to circuit court, Browu county. Hon. A. W. Campbell.</p> <p>John. Halpin was convicted of grand larceny, and brings error.</p>

Hon. A. J. Plowman, Judge. This case was first decided by this court in an opinion reported in 12 S. D. 627, 82 N. W. 179 in which opinion the appeal was ordered dismissed, A rehearing was subsequently granted. This opinion is upon the rehearing. The former decision is adhered to.

<p>1. Affidavits of jurors that a communication by the judge in answer to a question submitted after submission of the cause influenced their verdict of conviction are not admissible for the purpose of impeaching the verdict. 4</p> <p>2. After a jury had retired to deliberate on a verdict, the foreman sent a communication to the judge, asking if the jury could recommend the defendant to the mercy of the court, which the judge answered in the affirmative, and stated that he had made it an invariable rule to follow such recommendations. Held, that such communication was prejudicial error.</p>

, E. G. Smith, Judge. Action by Chloe Apland and others against John Pott. Judgment for defendant. Plaintiffs appeal. The facts are stated in the opinion.

Hon. Joseph B. Moore, Judge. Report of Edward Reilly, assignee for the benefit of creditors. Prom an order allowing the assignee certain amounts as compensation, the creditor, George B. Woodcock, and others, appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Mandamus by F. H. Hollister against Den Donahoe, as sheriff. From a judgment for damages in favor of plaintiff, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by Johanna Bertina Johnsdatter Moen against John J. Moen. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. The laws-of the state where real estate is situated exclusively govern its alienation, inheritance and succession Courts of last resort have universally adhered- to this principle wherever and whenever it has been brought in question.

<p>Under Const, art. 11, § 6, authorizing exemption from taxation of property “used exclusively” for charitable purposes, a building owned by a charitable institution, but part of which is used for a store, cannot be exempt, though the rents are used for charitable purposes.</p>

<p>1. Comp. Laws. § 7295, provides that the court on the hearing of a demurrer must give judgment either sustaining or overruling it, and enter an order to that effect. At the close of arguments on a demurrer to an indictment the state was permitted to withdraw the indictment, and present the matter to the grand jury anew, and defendant was ordered to appear and answer any new indictment. The minutes of the court were silent as to the disposition of the demurrer. Held, that, in the absence of any showing that defendant was prejudiced thereby, a second indictment would not be quashed for the court’s failure to comply strictly with the statute.</p> <p>2. Intoxication is no defense to an indictment for burglary, if the accused had enough control of his faculties to know right from wrong.</p> <p>Haney, P. J., dissenting.</p>

Hon. A. W. Campbell, Judge. Action by B. E. Lovejoy against B. E. Campbell and another. Judgment for defendant Campbell, and plaintiff appeals. The facts are stated in the opinion.

L. E. G-affy, Judge. Action by E. R. Hunt against the Northwestern Mortgage Trust Company, a corporation. Prom a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion.

Jones, Judge. Action by Soren Thompson against Den Donahoe, sheriff, to recover for a wrongful levy. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.

Prank B. Smith, Judge. Action by Warren Dye against the Bank of Plankinton. Prom an order dissolving an attachment, plaintiff appeals. The facts are stated in the opinion. The officers of the Bank are presumed to know the condition of the Bank, and the transactions in which it participates and which appear upon its books. Williams v. Mckay, 53 Am. Rep. 775; Cragie v. Hadley, 99 N. Y. 131-135.

Hon. Julian Bennett, Judge. Action by John H. Elfring and others against the New Birdsall Company. Judgment for plaintiffs, and defendant appeals. The facts are stated in the opinion. Agencies cannot be established by the admissions or statements of the agent.

Hon. Levi McGee, Judge. Action by John Hedlun against the Holy Terror Mining Company. Prom a judgment in favor of plaintiff, defendant appeals. If the plaintiff desired to repudiate the settlement, he should have tendered back to the defendant, the consideration he received prior to the commencement of his action. It is not sufficient to offer to restore in his complaint. Breyfogle v. Walsh 80, Fed. 172; Hammond v. Wallace 85 Cal. 531; Dotterer v. Freeman 88, Georgia 479.

Hon, Joseph W. Jones, Judge. Action by D. A. Scott and another, doing business under the firm name of Scott, Whitehouse & Co., againt L. S. Gage. Judgment for defendant, and plaintiffs appeal.

Hon. Julian Bennett, Judge. Action by S. F. Spencer against Albert Forcht and others. Judgment for defendants, and plaintiff appeals. If the property is subject to the liens of other creditors, the mortgagee should sell only enough to satisfy the mortgage claim. For any surplus he múst account to such creditors. He must, moreover, account for the actual value of the .goods without regard to the amount received for them if that be less than their value.

<p>1. The complaint in an action by the transferee of a note payable to C., or order, having alleged it was indorsed by C., and the answer having denied each and every alleg'ation of the complaint, except such as were specifically admitted in the answer, which did not include the indorsement by C., plaintiff must prove the indorsement.</p> <p>2. The allegation of the answer, in an action by the transferee of a note, that, if the note was transferred to plaintiff, it was transferred without consideration; is not an admission that it was indorsed by the payee.</p> <p>3. Where a note payable to order is transferred without indorsement, the transferee must aver and prove the assignment.</p> <p>4. The execution of notes sued on being admitted, eyidence by defendant that the way they were signed, in the lower left-hand corner, was unusual and irregular, is inadmissible.</p>

<p>1. A deed being in fact a mortgage, one who, with knowledge of this, takes an assignment of the note and a quitclaim deed from the mortgagee, gets merely the lien of the mortgage, under Comp. Laws, § 3243, as incident to the transfer of the note.</p> <p>2. Defendant, surety on anote, gave a mortgage in the form of a deed to secure it. Plaintiff, with knowledge of the facts, took an assignment of the note, with a quitclaim from the mortgagee. Plaintiff then, without the knowledge or consent of defendant, receipted for the property on the back of the note, and sent it to her, she retaining it, and remained silent. Held, that she was not estopped to assert the deed to be a mortgage, her conduct amounting at most to a contract to convey, invalid under Comp. Laws, § 3245, because not in writing.</p> <p>3. The legislature having, under Const, art. 3. g 24, no power to release or extinguish a liability to the state, Laws 1897, c. 84, attempting to release any rights of the state in certain lands, is inoperative.</p>

<p>1. Laws 1901, c. 105, §1,.'provides that in suits against administrators, etc., neither party, mor any one interested in the subject of the action, shall be allowed to testify adversly to the other party as to any transaction whatever with the decedent, unless called by the opposite party. Held,' that a witness’ statement that no action had been had for the recovery of the debts secured by a mortgage, which was the foundation of the suit, was not within the statute, though the' mortgagor was dead.</p> <p>2. A person is not incompetent, under the statute, to testify as to a conversation which he heard between an intestate and a party’s agent, though he was in company with the agent at the latter’s request, and after-wards became the attorney of the party in the litigation.</p> <p>3. Comp. Laws, §4343, provides that a lien is not extinguished by lapse of the time within which an action can be brought on the principal obligation. Held, in an action to reinstate and foreclose a mortgage, that the introduction of the mortgage and note, upon which no payments were indorsed, and a witness’ testimony that the face of the note was due, with interest from maturity, was sufficient to show the amount for which a foreclosure would lie, though the note-was barred.</p> <p>4. Comp. Laws §4880, provides that persons severally liable on the same obligation, including notes, may all or any of them be included in the same action at the plaintiff’s option. Held, that it was optional with the plaintiff, suing to réinstate and foreclose a mortgage of which he was assignee, to make the original mortgagee, who. was' his agent, a party.</p>

Frank B. Smith, Judge. Fred L. Stevens was convicted of receiving, as cashier, a deposit made with an insolvent bank, and he brings error.

<p>Appeal from circuit court, Aurora county. Hon. Frank B. Smith, Judge.</p> <p>Action by Wayne Mason against Fred L. Stevens and others. Judgment for plaintiff. Defendants Stevens and another appeal.</p>

Hon. A. W. Campbell, Judge. Action by Enga Anderson against Don G-. Medbery, sheriff of Beadle county. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.

<p>1.' In an action against a sheriff for the conversion of personal property, defendant denied plaintiff’s title and possession, the taking, etc., and alleged that a third party, while the owner and in possession of the property, mortgaged the same; and set out various proceedings to foreclose the mortgage, resulting in the sale of the property by defendant, as sheriff, to satisfy the mortgage, one of the proceedings being an action by the mortgagee against such third party to recover possession from such third party for the purpose of foreclosing. Plaintiff moved to strike from the answer all the allegations in justification on the ground that the judgment in the action for possession was not binding on plaintiff, he not being a party; that the mortgage was no evidence of title as against plaintiff; that plaintiff was not a party to any of the proceedings. Held proper to refuse to strike out such allegations, inasmuch as the title in the third party would have been no defense unless defendant connected himself therewith, and therefore the facts were necessarily pleaded, and inasmuch as the proceedings and foreclosure would be rightful against plaintiff, and binding on him, if the third party was in fact the owner of the property when the mortgage was executed.</p> <p>2. Where, in a suit against a sheriff for the conversion of personalty, his answer justified the taking as under mortgage foreclosure proceedings against a third party alleged to be the owner, it is proper to receive in evidence the mortgage and various proceedings leading up to the foreclosure.</p> <p>3. Comp. Laws, § 5090, subd. 3, provides that when the notice of a motion to move for a new trial designates as the ground of the motion insufficiency of the evidence to justify the verdict, the statement shall specify the particular in which the evidence is insufficient, and, if no such specification be made, the statement shall be disregarded on the hearing of the motion. Held, that the statute is mandatory, and, unless complied with as to specifications of insufficiency, neither the trial court nor the supreme court is authorized to look into the hill of exceptions to review the evidence.</p> <p>4. The granting of a motion for a new trial on the ground of newly discovered evidénce is a matter for the discretion of the trial court, and its action will not be disturbed except where that discretion has been abused.</p>

Hon. J. W. Jones, Judge. Action by Alfred Smith against Eli Jones and others. From a judgment for defendants and an order denying a motion for a new trial, plaintiff appeals. The facts aré stated in the opinion. The rule in regard to the protection of officers under process is that the process must be regular, and must state an offense. Frazer v. Turner 45, N. W, 411; .Clyma v. Kennedy, 29 Atlantic, 539: Linck v. Hester, 58 N. W., 1101; DeCourcy v. Cox, 30 Pac., 95.

Hon. A. W. Campbell, Judge. Action by Elizabeth Matheson against the F. W. Johnson Company and others. From a judgment for plaintiff, defendants appeal. The facts are stated in the opinion.

W. G. Rice, Presiding Judge. Injunction by W. H. Walling against S. C. Lummis, county treasurer Custer county, to restrain the issuance of refunding bonds. Prom a judgment for defendant, plaintiff appeals. The debt of any county shall never exceed five per centum upon the assessed value of the taxable property therein. § 4 . Art. XIII, Constitution. This provision is a plain limitation of the aggregate amount of county indebtedness, whether by loan or otherwise.

<p>On appeal from the judgment alone, it will be presumed, in the absence of a complete statement of all the testimony introduced at the trial, that the findings are based on sufficient evidence.</p>

<p>Appeal from circuit court, Minnehaha county; Hon. J. W. Jones, Judge.</p> <p>Action by Anton P. Phillips against P. J. Swensen. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from circuit court, Spink county; Hon. A. W. Campbell, Judge.</p> <p>Action by W. J. McGill against F. Young and another. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Hughes county; Hon. Loring , E. Gappy, Judge.</p> <p>Action bj the State Bank of Fillmore against John Hayes. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Where a complaint in an action before a. justice plainly sets forth a cause of action in forcible entry and detainer, no question of the title to real property was involved so as to deprive the justice of jurisdiction by reason of an allegation therein that plaintiff was the owner of the property sought to be recovered, which was denied, such allegation being unnecessary and surplusage.</p> <p>2. Comp. Laws, § 6077, providing that the time for appearance and pleading in an action for forcible entry and detainer shall not be less than two or more than four days from the time the summons is served, etc., was not repealed by Laws 1901, c. 195, amending section 6054, relating to the time for appearance in justice courts, providing 'that the time specified in the summons for defendant’s appearance shall be not less than Ihi’co or more than twelve days from the date of service.</p> <p>3. Under Comp. Laws, § 4805, providing that the time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, when it is also excluded,- in determining the time for appearance under the summons a holiday which is not the last day must be included.</p>

<p>Appeal from circuit court, Moody county. Hon. J. W. Jones, Judge.</p> <p>Action by H. J. Lounsbery against Peter Erickson. Prom an order opening a default judgment and granting defendant leave to answer, plaintiff appeals.</p>

<p>1. Granting a continuance is discretionary with the trial court.</p> <p>2. Where it appeared that defendant’s presence ,was not essential to a proper defense, that he would not have been physically able to be present for some time, and that his deposition might have been taken, and where it was admitted that defendant, if present, would testify as alleged in the affidavit for a continuance, its refusal was not an abuse of discretion.</p>

Hon. A. W. Campbell, Judge. Action by the Plano Manufacturing. Company against Michael W. Murphy and others. A judgment was rendered in favor of plaintiff by default, and from an order denying defendants’ motion to vacate such judgment and grant defendants leave to answer they appeal.

Hon. J. B, Moore, Judge. Action by Sing You against Wong Free Lee and another, in which Wong Buck and others intervene. From a judgment in favor of defendants and interveners, and from an order denying a new trial, plaintiff appeals. The rule with reference to the evidence required to establish a resulting trust is that it must be clear, satisfactory and convincing.

<p>1. Copies of the affidavit and order for service by publication of a summons need not be served with the summons and complaint where they are served personally on defendant out of the state, the statute not requiring it. »</p> <p>2. Laws 1893, c. 75, § 1, providing that in no case shall a divorce he granted without personal service of the summons and order of publication, has no application to, and therefore does not, make service of the notice of publication necessary, in other cases.</p> <p>.3. Under Comp. Laws, § 4900, suhd. 5, making no other requirement as to filing except that, where publication of summons is made, the complaint must be first filed, failure to file the affidavit and order for publication till the time of taking judgment is immaterial.</p> <p>4. Under Comp. Laws, § 4900, providing that, where the person on whom service of summons is to be made cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfacti on of the court, it may order service by publication, it is authorized to * make the order on plaintiff’s affidavit stating that defendant could not, after due diligence, be found in the state; that the summons was issued and placed in the hands of the sheriff, and by him returned with the indorsement thereon that defendant could not be found in the county; and that plaintiff had been in correspondence with defendant, and had received letters from him, written at a certain place in another state.</p> <p>5. Recital in an order for service by publication of summons that it satisfactorily appeared by affidavit that a cause of action existed against defendant in favor of plaintiff as set forth in the complaint, a copy of which was thereto annexed, is conclusive on appeal that a copy of the complaint was annexed to the affidavit.</p>

A. W. Campbell, Judge. Action by Francis Reckitt against A. M. Knight, and others. From a judgment in favor of defendants, plaintiff appeals. Under the statutes of South Dakota, in force in 1891, Secs. 106-111, Chap. 14, laws of. 1891,-a county treasurer at a tax sale was only authorized to purchase or bid in for the county, lands when there were no other bidders, offering the amount of taxes due, including penalty,, interest and costs.

<p>Appeal from circuit court, Spink county. Hon, A. W. Campbell, Judge.</p> <p>Action by Josiah Thompson against Mrs. M. E. Roberts. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Lawrence county. Hon Joseph B. Moore, Judge.</p> <p>Action by Amanda Harding against Lebeus G-. Harding. From a decree amending a decree of divorce as to alimony, defendant appeals.</p>

Hon. Julian Bennett, Judge. Action by Rose uta J. Horswill against Emma B. Farnham, to quiet title. From a judgment in favor of plaintiff, and from an order overruling defendant’s motion for a new trial, she appeals.

<p>Original action by Hon. Julian Bennett against the state.</p> <p>The rule of construction is fundamental that each section of an instrument must be read in the light afforded by other sections of the same document. Then the legislature, in the exercising of the power conferred by Sec. 2, Art. 21, is, aside from the limitations therein contained, further limited in the exercise of this power by Sec. 34, Art. 5, of said constitution. The proviso in the law of 1901'prevents the uniformity of operation required by the constitution, and is void. 43 N. E., 1000, and cases cited. 88 N. W. 577; 72 Minn., 126; 3 Okla. 677.</p> <p>Section 34, Art. 5, of Constitution, as to the requirement that all laws relating to courts shall be uniform, does not refer tq salary but to the organization, jurisdiction, power, proceedings, and practice of all the courts of the same class. The proviso in Section 1, Chapter 110, Laws of 1901. is warranted by Jhe provisions of our Constitution, the Legislature did not exceed its authority in enacting that chapter.</p>

Hon. D. E. Bailey, Judge. Ada Finstad was convicted of the crime of assault and battery in a justice’s court and from the judgment of the county court reversing the conviction the state brings error.

Hon. J. W. Jones, Judge. Suit for the partition of real property by John Henry and others against Isaac C. Taylor. From a judgment for defendant, plaintiffs appeal.

Joseph B. Moore, Judge. Action by Matthias Kieffer and wife against John F. Smith, as sheriff of Meade county, -and another. From a judgment for the plaintiffs and an order denying a new trial, defendants appeal.

E. G. Smith, Judge. George McElwain was convicted of manslaughter in the second degree, and brings error.

D. R. Bailey, Judge. Action by H. C. Bright against James C. Juhl. There was a judgment for plaintiff, and plaintiff appeals from an order granting a new trial. The trial court had no jurisdiction to grant the defendant a new trial where more than two years had elapsed from the entry of judgment and the time to appeal from such judgment had expired.

Hon. Loring E. Gaffy, Judge. A-Ction in claim and delivery by the First National Bank of Custer City against Israel Calkins. Judgment for defendant, and plaintiff appeals. As the defendant had not complied with the decree in the case of Calkins v. Perkins at the time this suit was brought, that first decree is decisive of this case in favor of plaintiff. Wells on Rep. §§32/94; Campbell v. Williams 39 la. 646.

Hon. Levi McGee, Judge. Action by tbe Lone Tree Ditcb Company, a corporation, and others, against the Rapid City Electric & Gas Light Company, a corporation. Prom judgment in favor of plaintiffs, defendant appeals.

Joseph W. Jones, Judge. Action by the Advance Thresher Company against Amos Rockafellow and others. Judgment in favor of. plaintiff, and the surviving defendants, John H. Rockafellow and others, appeal.

<p>Appeal from circuit court, Moody county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Augustus Huntemer against Nicholas Arent. Judgment for plaintiff, and defendant appeals.</p> <p>Before an agent employed to procure or find a purchaser for real estate can recover an agreed compensation for his alleged services, he must show by competent evidence that he has found a purchaser for such real estate who is at the time ready, willing and able to purchase such real estate on all the terms and conditions imposed by the [owner in his contract with such agent, and has brought such person to the owner. Howie v. Bratrud 14 S. D. 648; McLaughlin v. Wheeler, 1 S. D. 497; Scott v. Clark 3 S. D. 486; McGavock v. Woodlief, 20 How. 221.</p> <p>One employing a broker to sell real estate, but himself negotiating a sale without the agency of the broker, is not liable to him for commission, see: McClave v. Paine, 49 N. Y. 561; Armstrong v. Wann, 12 N. W. 345; Dole v. Sherwood, 43 N. W. 569; Baars v. Ryland, 67 N. W. 1148; Darrow v. Harlow, 21 Wis. 306; Vol. 4 Am. & Eng. Ency. Law (2nd ed) 979. 31; Vol. 1 Warvelle on Vendors, page 242.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph, W. Jones, Judge,</p> <p>Action by Sigrid Paulson against Ole Langness and another. Prom an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Appeal from' Circuit Court, Minnehaha County. Hon. Joseph W. JonesJ Judge.</p> <p>Action by the Nichols & Shepard Company against C. P. Cunningham, impleaded with W. H. Dockstader. From a judgment in favor of defendant Cunningham, plaintiff appeals.</p>

<p>Appeaifrom circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Emory E. Dodson, as surviving partner of P. A. Fisher & Co., against Charles T. Crocker, Judgment for defendant, and plaintiff appeals.</p>

Appeal fiom Circuit Court, Pennington County. Hon. Levi McGee, Judge. Partition by George Wells, against Mary A. Sweeney and others. Judgment for plaintiff, and defendants appeal. A homestead in the sole and exclusive possession of the surviving husband, claiming and retaining his life estate, cannot be partitioned 'in a suit by him against the remainder-man or reversioner. Sec. 5362 Comp. Laws. §§ 431, 440, Preem.

<p>Appeal from circuit court, Stanley county. Hon. Loring E. Gappy, Judge.</p> <p>Suit by Estelle Ward against Edward DuPree and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from circuit court, Lake county. Hon. Joseph W. Jones, Judge.</p> <p>Action by D. M. Robbins and another, copartners doing business as Robbins & Warner, against Charles H. Weiss! From a judgment for plaintiffs, defendant appeals.</p>

Hon. E. G. Smith, Judge. Application, on relation of the Ancient Order of United Workmen, for peremptory mandamus against H. O. Schober. as State Insurance Commissioner, to compel the issuance of a certificate to relator authorizing it to do business in the state. From an order granting the writ, defendant appeals.

<p>Appeal from circuit court, Brown county. Hon. A. W. Campbell, Judge.</p> <p>Mandamus by the state, on the relation of W. T. La Follette and others, constituting the Board of Railway Commissioners of South Dakota, against the Chicago, Milwaukee & St. Paul Railway Company and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal.</p> <p>The legislature has the power to compel a common carrier to do business in the ordinary and usual way and therefore may compel such interchange of cars as incidéntal to the business for which the company was chartered. The Supreme Court of Iowa reached the same conclusion in R. R. Co. v. Dye, 48 N. W., 98; A. T. & S. P. R. R. Co. v. Denver & N. O. R. R. Co., 110 U. S., 667; Peoria & P. U. Ry. Co. v. Chicago R. & I. P. Ry. Co., 109 111., 135; R. R. Co. v. Smithson, 45 Mich., 712; State v. Wabash S. L. & P. Ry. Co., 83 Mo., 144. Jacobson v. Wis., M. & P. Ry. Co., 74 N. W., which last cited case was affirmed by the United States Supreme Court, and is found in 179 U. S., p. 288.</p> <p>Section 39 of Chapter 110, Laws of 1897. Such corporations, connecting by intersection as aforesaid, shall also, whenever ordered by the Railroad Commissioners, so unite and connect the tracks of said several corporations as to per mit the transfer from the track of one corporation to the other of loaded or unloaded cars designed for transportation upon both roads.”</p> <p>To be enforceable, the statute should provide that where the roads concerned are unable to agree upon such matters as location, route, construction, material and cost of track, or any other necessary feature of it, the commissioners or some other tribunal should be appointed with power and authority to determine all such matters, and their order should be binding, and furnish the rules and specifications for building the track, Failing to so provide, it is void for uncertainty. The maxim “That is certain which can be made certain,” is here unavailing because as we haye shown the uncertainty is an incurable defect arising out of the incompleteness of < the statute. People Niagara Falls v. N. Y. Central R’y Co., 52 N. Y. Sup. 234; City of Roxbury v. Boston & P. Ry. Co., 2 Gray 460; Old Colony and Fall River R’y. Co. v. Commissioners of Plymouth, 11 Gray 512; State of Kansas v. Mo. Pac. R’yCo., 33 Kan. 176, 5 Pac. 772. To give a board or any tribunal power to order persons or corporations to expend money and part with substantial rights, arbitrarily without notice, is to transcend the protection of the constitution, which declares that -no person shall be deprived of liberty or property without due process of law. Evans v. Fall River Co. 9 S. D. 130; Turner v. Hand Co. 11 S. D. 351; Hutson v. Woorbridge Protection District' et. al. 16 Pac. 549; Stuart v. Palmer, 74 N. Y. 183; Spencer v. Merchant, 8 U. S. Supreme Court Rept. 921; Griswold College v. City of Davenport (la.) 22 N. W. Rptr. 904; Brown v. City of Denver, 3 Pac. R. 455; Aner v. City of Dubuque, 22 N. W. 914; State ex rel Flint v. Fond du Lac, 42 Wis. 295.</p>

Hon. E. G. Smith, Judge. Proceedings by the city of Centervillé against Austin Olson for the violation of a city ordinance. From a judgment of the circuit court reversing a judgment of the police justice against defendant, the city appeals.

<p>1. Comp. Laws 1887, § 3272, provides that an instrument is deemed to be recorded when it is deposited in the register’s office for record. Sections 5411, 5412, provide that mortgages containing a power of sale may be-foreclosed by advertisement if they have been duly recorded. Held, that a foreclos re by advertisement of a mortgage containing a power of sale was not rendered void because the recording officer negligently omitted to transcribe the clause of the mortgage containing the power of sale into the record book.</p> <p>2. A mortgagor, who had executed a mortgage containing a power of sale, acquiesced in the foreclosure thereof, and delivered possession to the purchaser under the sheriff’s deed. He later quitclaimed to defendant, who claimed under the foreclosure, and had in the meantime released a valid prior mortgage in reliance on the regularity of the proceedings at the sale. The mortgagor had previously given a warranty deed to the premises to another, and through various mesne conveyances a paper title passed to plaintiff. During the time of all these conveyances defendant was in actual, notorious, and peaceable possession, claiming through the foreclosure, and the conveyances through which plaintiff claimed were, therefore, void under Comp. Laws 1887, § 3303, providing that a grant of real property in the actual possession of another claiming under a title adverse to the grantor is void. Held, that plaintiff was estopped to assert title to the premises in reliance on an alleged invalidity in the foreclosure proceedings.</p>

Hon. Joseph W. Jones, Judge. Action by R. J. Wells against the city of Sioux Falls and others to prevent the sale of certain city bonds. From an order overruling a demurrer to answer, plaintiff appeals.

Hon. Julian Bennett, Judge. Action by J. D. Riley against P. B. Grant and Robert Schull to enfore specific preformance of an alleged contract to convey real property. Prom a judgment for plaintiff, Schull appeals.

Hon. E. G. Smith, Judge. Action to enforce specific performance 1 of a contract to. sell realty by Frank P. Stearns against Harriet A. Clapp. From a judgment for plaintiff, defendant appeals.

<p>1. Laws 1890, c. 86, § 2, declares that, in addition to the property mentioned in the preceeding section as exempt to the debtor who is the head of a family, such debtor may select from other personal property, not absolutely exempt, money or property not exceeding in value $750, and if he is a single person, not the head of a family, of the value of $300. Held, that a married woman could not recover in an action against a sheriff for levying on property alleged to be exempt to her under section 2, in the absence of an affirmative finding- that she was the head of the family.</p> <p>2. Evidence of plaintiff on an issue as to the truth of representations made to induce the sale of goods to her, though not uncontradioted, is not conclusive, but may be disregarded, as not entitled to credit.</p> <p>3. Plaintiff’s husband, who was transacting plaintiff’s business as her agent with her knowledge, made representations in June, 1900 to induce the sale of goods to her, that she possessed property, exclusive of all her liabilities, of the value of $7,000, and that the cash value of her merchandise was $3,700. In December of the same year, plaintiff made affidavit that the value of her property, exclusive of her homestead; was less than $750, including her stock of merchandise; but no explanation was given by plaintiff or her husband as to the cause of the depreciation, though plaintiff stated that, at the time the statement by her husband was made, it was true. Held, that such facts justified a finding that the sale of the goods to plaintiff was induced by fraud, precluding plaintiff from claiming exemptions.</p>

Hon. Joseph W. Jones, Judge. Action in claim and delivery by Stillman J. Benjamin against R. J. Huston. From a judgment for plaintiff, defendant appeals.

Hon. Levi McGee, Judge. Action by the Custer County Bank against the W. H. Wall- • ing Mercantile Company and another. From an order appointing a receiver of defendant corporation’s property, defendants appeal.

Levi McGee, Judge. Action by Patrick B. McCarthy against Edward W. Speed, as administrator of William B. Franklin, deceased, and others, including John S. George, executor of John J. Fayel, deceased. Plaintiff had judgment for his costs and disbursements in the Circuit and Supreme Courts, and caused property owned by John S. George individually to be sold in satisfaction thereof.

Hon. Julian Bennett, Judge. Action by David Waterhouse against the Joseph Schlitz Brewing Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from circuit court. Brule county. Hon. Frank B.Smith, Judge.</p> <p>Action by F. A. Reynolds against Henry W. Hinrichs. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Minnehaha County Court, Hon. D. R. Bailey, Judge.</p> <p>Action by G. E. Rochford against Alick McGee.. Judgment for Defendant, and plaintiff appeals.</p>

Hon. J. H. McCoy, Judge. Actiou by J. B. Geddis against F. L. Folliett. From a judgment for defendant, and from an order denying a new-trial, plaintiff appeals,

<p>Appeal from circuit court, Grant county, Hon. A. W. Campbell, Judge.</p> <p>Action by George W. Murphy against Henry Redeker and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Beadle county, Hon. J. H. McCoy, Judge.</p> <p>Action by Addie Howell against Michael Dinneen. From an order dissolving a temporary injunction, plaintiff appeals.</p>

Hon. Julian Bennett, Judge. Action by L. Long against D. D. Collins, formerly sheriff of Clark county, defendant, and the First National Bank of Clark, intervener. From an order offsetting two judgments of the plaintiff and intervener, respectively, plaintiff appeals.

<p>1. An order granting a new trial, after verdict for plaintiff, on the ground ‘•that the evidence is not sufficient to sustain the verdict,” is within ■ the discretion of the trial court.</p> <p>2. Where a new trial has been granted, a stronger case is required to secure a reversal than where it has been denied.</p> <p>3. The rule that the uncorroborated testimony of a party in his own behalf is not conclusive on a jury does not divest the trial court of its discretion to grant a new trial, when, in its opinion, justice requires such exercise of its discretion.</p>

<p>Under Laws 1901, p. 205. c. 123, § 2, providing that when a person dies leaving no estate, except personal property of trifling 'value, the judge of the county court shall take charge of the estate personally, or hy some person he may appoint, and pay out of it the burial and other expenses, and set apart to the widow and minor children, if any, the residue, the responsibility of gathering and distributing such property is on the judge and a person appointed by him to take physical possession of the property is a mere custodian, and has not legal capacity to sue^ as agent of the county court, to collect from a fraternal society of which deceased was a member a sum for funeral expenses.</p>

Hon. Jo • seph B. Moore, Judge. Action by the Portland Consolidated Mining Company against Michael D. Rossiter and others. Prom an order sustaining a demurrer to the complaint, plaintiff appeals.

Julian Bennett, Judge. Action by Reinhold Johnson against John A. Cressey and another, From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.

<p>1. Where a railroad company had previously condemned a right of way and in. a subsequent proceeding to condemn additional strips to widen it the court charged that the jury should not allow the landowner for the present injuries the railroad was inflicting or would in the future inflict, and should only allow compensation for the additional land taken and the injury that would resuit therefrom, it will be presumed on an appeal from the award, in the absence of a showing to the contrary, that no damages were awarded on account of the construction of the road itself.</p> <p>2. In a proceeding to condemn an additional strip of about 3 acres on each side of a railroad’s right of way, it appeared that defendant’s remaining land was separated from the railroad by two fences which it would be necessary to remove, and which defendant testified were valuable in keeping his stock from the track. Defendant and other witnesses testified that the difference in market value of defendant’s farm before and after the taking of such additional strips was “$500 and more.” The only evidence as to the value of the land produced by petitioner was that defendant’s farm and other land in the neighborhood, when sold as a whole, was worth from $35 to $50 per acre. Held, that an award of $400 was not excessive.</p>

<p>Appeal from the circuit court, Lawrence county, Hon. Joseph B. Moore, Judge.</p> <p>Action by Michael R. Russell and others against the Deadwood Development Company and others. Prom a judgment for defendants, plaintiffs appeal.</p>