Volume 16 — Wyoming Reports

Richard H. Scott, Judge. Action for partition. The material facts are stated in the opinion. The examination by the commissioners of the lands pardoned, made by merely driving over the lands when they were covered with snow, was entirely inadequate.

Charles E. CarpsntRr, Judge. The action was brought upon an injunction bond by James H. Burgess against Fred Littleton, the principal named in the bond, and his surety. Judgment was rendered for plaintiff. The defendants brought error. The material facts are stated in the opinion. The statute as to change of venue is mandatory. (Perkins v. McDowell, 3 Wyo., 204; Dowling v. Allen, 88 Mo., 293; Route v. Ninde, 118 Ind., 123; Walsh v.' Ray, 38 Ill., 30; Ins.

Roderick N. Matson, Judge. The information was fatally defective in a matter of substance, in failing to allege the ownership of the property said to have been taken by force and violence. The statute is virtually a re-enactment of the common law. A man is not guilty of taking his own property from another even by violence; so there must be all the elements of larceny present to coiistitute robbery, and the ownership of the property taken must be alleged.

„ ERROR to' the District Court, Laramie County, HoN. RODERICK N. MatsoN, Judge. R. B. Knott brought suit against Annie Mavott in justice court and obtained judgment.

Eeror to the District Court, Crook County, Hon. Carroll H. Parmelee, Judge. To give a tax deed any semblance of validity in states having no statute of presumption, every successive step in the tax proceedings must be pleaded and proven. (Black Tax Titles, 155, 443, 446; Norris v. Hall (Mich.), 82 N. W., 832; Hecht v. Boughton, 2 Wyo., 385; Wolcott v. Holland, 27 O. C. C., 71; 2 Cooley Taxation, 916, 1004.) Assessment is the jurisdictional pre-requisite to taxation.

Carroll H. Parmsli®, Judge. Heard on motion to dismiss for failure of plaintiff in error to file his brief- within the time prescribed by the rules of court. argued and contended that the defendant in error is not prejudiced by'the failure' to file the brief in time, since its counsel was served-with a copy within the prescribed period; and that the rule provides for dismissal on this ground only where there is a - failure to both file and serve brief.

<p>Injunction— Contempt — ' Practice— Parties — Appearance— Final Order — Appeal and Eeeor — Costs in Contempt — Imprisonment for Non-Payment.</p> <p>1. The statute making the disobedience of an injunction a con-. tempt is both remedial and punitive, since it not only authorizes the requirement of restitution to the injured party and further security for obedience to the injunction, but the imposition of a fine for the use of the county.</p> <p>2. Without deciding that a proceeding against an injunction defendant as for a contempt in disobeying the injunction may not properly be brought and entitled on the relation of a party or in the name of the state, it is deemed better practice to entitle it in the cause out of which it arises.</p> <p>3. By voluntarily appearing, filing an answer, and submitting to a hearing without objecting to jurisdiction, upon a rule to show cause why he should not be punished as for contempt for an alleged disobedience of the injunction, an injunction defendant waives the irregularity, if any, in bringing and entitling the contempt proceeding in the name of the state as plaintiff.</p> <p>4. After such appearance it is too late for the defendant to object for the first time in the appellate court on error that the contempt proceeding was improperly brought and. entitled in the name of the state.</p> <p>5. An order in a proceeding to punish an injunction defendant as for a contempt for an alleged disobedience of a temporary restraining order, which adjudges him guilty and imposes a penalty, is a final order in a special proceeding, and as such subject to review on error.</p> <p>6. Plaintiff and defendant being adjoining land owners, the latter claimed some of his premises had been included within the former’s enclosure, in which he was sustained by a survey of the county surveyor made to establish the line, on his application, pursuant to statute. By temporary restraining order the defendant was enjoined from entering upon plaintiff’s premises described only by legal subdi- a visions without mention of an enclosure. I11 a proceeding to punish him as for contempt for disobeying the injunction it was not shown that he had gone upon any of the land described in plaintiff’s petition or restraining order, but merely that he had entered plaintiff’s enclosure. Held, that upon the evidence the defendant was not guilty of contempt.</p> <p>7. A defendant adjudged guilty of contempt for disobedience of an injunction cannot be imprisoned for non-payment of the costs of the contempt proceedings, in the absence of a statute expressly authorizing it.</p> <p>8. The statute merely authorizing a commitment to custody for the non-payment of a fine imposed in a contempt proceeding for the disobedience of an injunction, there is no authority to imprison for the non-payment of the costs of such proceeding.</p>

<p>Appeal and Error — Briefs—Delay in Filing — Dismissal.</p> <p>1. Though the inability of a plaintiff in error to have the record made up, through the neglect of the district court stenographer to transcribe the evidence, might have been good cause for an extension of time for filing brief, it will not excuse several months’ delay in filing the same beyond the time prescribed by the rules, without an extension of time or an application therefor.</p>

Carroll H. ParmslKE, Judge. The action was brought in the district court by the Union Stockyards National Bank of South Omaha, Nebraska, against Amil E: Maika and Emma Maika. Judgment was rendered • in favor of the defendants, and the plaintiff prosecuted error. - The facts are stated in -the opinion. The petition states a valid cause of action.

Carroll H. Parmrlrr, Judge. Action to recover possession of real estate and rents and profits. The facts are stated' in the opinion. Was the agent’s sale valid? A substantial compliance with the instructions, or one which involves no material variation, is sufficient. (Warvelle on Vendors, Sec. 210.) There was a substantial compliance in this case. The agent was authorized to receive the first payment.

David H. Craig, Judge. The Eirst National Bank of Daramie, Wyoming, brought an action in replevin against N. K. Boswell. The defendant prosecuted error from a judgment for the plaintiff. The facts are stated in the opinion. The power of attorney to the co-partner to execute chattel mortgages was inadmissible because improperly attested and acknowledged. The reference by initials to the party whose signature was attested is insufficient.

Exceptions by prosecuting attorney. From the District Court, Laramie County, Hon. Roderick N. Matson,, Judge. On the trial of Ray H. Pressler for murder in the first degree, the prosecuting attorney excepted to the refusal of certain instructions requested by him as to the burden of proof on the question of insanity, and filed his bill showing such exceptions, pursuant to Sections 5378-5381, Revised Statutes 1899'. The instructions so refused are set forth in the opinion.

Charles E. CarpENTER, Judge. The facts are stated in the opinion. The court erroneously quashed the summons upon Earnest, since it complied with the statute requirements, and his appearance was general. (Honeycutt v. Nyquist, 12 Wyo., 183.) Actions for money judgment and foreclosure of lien may be joined. (2 Yaple’s Code Pi., 1102.) Without a showing, a default cannot be set aside.

Original proceedings on habeas corpus. The facts are stated in the opinion. The writ of habeas corpus may be refused to no one who shows a prima facie right to discharge. The statutory proceedings (Secs. 4894, 4895) has but one office — that of restoration to capacity. Restoration to liberty is not mentioned in the sections. Where habeas corpus is an appropriate remedy, it matters not that a remedy also exists by some other proceeding.

Original proceeding on habeas corpus. The facts are stated in the opinion. At common law Sunday was dies non juridicus. (20 Ency.

Carroll H. Parmelee, Judge. Assault with intent to commit rape upon a girl under the statutory age of consent. The defendant, Charles Ross, was convicted, and prosecuted error. The facts are stated in the opinion. The evidence is not sufficient to sustain the verdict. The instruction that an attempt to carnally know a female child under the age of six years, whether with or without her consent, is an attempt to do a violent injury to such child was error.

Carroll H. Parmblb:®, Judge. A. J. Morris brought the action to recover damages for injuries occurring- to certain horses while being- transported by the defendant railroad compan)'-. From a judgment in favor of the plaintiff, the-defendant prosecuted error. The facts are stated in the opinion. The car was greatly overcrowded, and this was the shipper’s fault.

Carroll H. ParmelEE, Judge. E. G. Pollock sued to recover from the Chicago, Bur-ling-ton & Quincy Railroad Company, for the loss of two horses which, it was alleged, the company had failed to transport as a common carrier according- to contract. From a judgment in favor of plaintiff, the defendant prosecuted error. The facts are stated in the opinion.

Charles E. Carpenter, Judge. Upon a proceeding to determine heirship to the estate of Julius A. Schuelke, deceased, Lola Small Schuelke Primm claimed the . estate as widow of the decedent, as against Emilie Weidenhoft, mother, and Johanna Schuelke, sister of the decedent. Judgment was rendered in favor of the former and the latter — the mother and sister — prosecuted error. The facts are stated in the opinion.

Carroll H. Parmrlrr, Judge. The material facts are stated in the opinion. It is proper to permit the petition in error to be amended as to any matter contained in the record, proper to be considered on error. (R. R. Co.'v. Ingalls, 13 Neb., 279; Spencer v. Thistle; 13 Neb., 201; Robinson v. Kilpatrick, 50 Neb., 795; Hildebrant v. Brewer, 5 Tex., 566; Ry.

The proceeding was instituted on behalf of Frank J. Keefe to restrain the district'court of Carbon County from proceeding ,to try him upon a second information for murder in the first degree, the case upon the first information having been transferred to Albany County on change of venue, and being there pending. The plaintiffs in the proceeding were Frank J. Keefe, and the State of Wyoming on the Relation of said Frank J. Keefe.

Roderick N. Matson, Judge. Action for divorce brought by Anna Duxstad against Rouis Duxstad. Held: however, that such relief in an appellate court is not a matter of course, but can be granted only upon proof made in such court, showing the necessities of the wife and also the financial ability. of the husband, and a further showing that the appeal is taken in good faith.

David H. Craig, Judge. The material facts are stated in the opinion. A city is not liable for damages to abutting property by change in the grade of streets in the absence of some statute or constitutional provision imposing such liability. (2 Dill. Mun.

Carroll H. Parmslss, Judge. Paul Richter, having been found guilty of removing certain sheep belonging to him from quarantine limits established for them by a sheep inspector, prosecuted error. The material facts are stated in the opinion. The statute must be strictly complied with to establish a legal quarantine. If there was no legal quarantine the verdict and judgment is contrary to law.

David H. Craig, Judge. The facts are stated in' the opinion. It was necessary for the plaintiff to prove the stock had not matured to maintain its suit. The failure to pay an installment, if any was due, in view of the by-laws of the association, gave a right of action upon the whole debt, and, therefore, upon the first default the statute of limitations commenced to run. (Bank v. Peck, 8 Kan. 663; Hemp v. Garland, 4 Q. B. 519; Reeves v. Butcher, 2 id. 509; Mach.

Original proceeding in mandamus. The case was instituted upon a petition filed in the name of the State on the relation of Patrick Sullivan and John T. Williams, praying for the writ of mandamus to compel an election of members of the Legislature under the apportionment contained in the constitution, in disregard of all subsequent apportionment acts, each of which acts were alleged-to be invalid. Hearing was had upon a demurrer to the petition and alternative writ.