Volume 17 — South Dakota Reports

Hon. Joseph W. Jones, Judge. Petition by Thomas Olson to the county court for the vacation of certain orders adjudging him incompetent, and appointing guardians of his person and estate. The county court made an order as petitioned for, which was reversed by the circuit court on appeal. Prom the judgment of the latter court, Olson appeals.

<p>Error to circuit court, Brown county.' Hon. James H. McCoy, Judge.</p> <p>Willis H. Burt was convicted of incest, and he brings error.</p>

' Hon. Joseph B. Moore, Judge. Action by'-Edward Stenger against Paul Tharp and others. From a judgment in favor of plaintiff, defendants appeal.

Hon. Joseph B. Moore, Judge. Action by John ,H. Skelly and Theresa M. Evans against Edson C. Warren. Judgment for plaintiffs, and from an order denying a new trial defendant appeals. A description by government subdivisions is insufficient to charge the purchaser with notice. Beard v. Dansby 48 Ark. 186; Shepherd v. Jernigan 10 S. W. Rep. 765; 16 Am. & Eng. Cyc. Juaw. 88 andcases cited. (2 Ed.) Color of title does not depend on an indefeasable estate.

Hon, J. H. McCoy, Judge. Action by John Campbell against the Equitable Loan & Trust Company of Volga. From an order denying a motion for a new trial, plaintiff appeals. Statutes regulating the procedure of the Courts, where no vested rights are involved, will be construed as applicable to causes of action already accrued.

Hon. Joseph B. Moore, Judge. . Action by Seth P. Saxton against John Musselman and another, as administrators of the estate of Andrew J. Smith, deceased. Prom an order sustaining a demurrer to defendants’ answer, they appeal.

Codington county. Hon. Ju lian Bennett, Judge. Action by Robert Schull against the New Birdsall Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Frank B. Smith, Judge. Action by Agnes Burgess against Myron E. Burgess. From a judgment for plaintiff, defendant appeals. Any agreement that the defendant in a divorce suit will not make a defense, or having for its object a dissolution of a marriage contract or design to promote and facilitate a divorce is void, because opposed to the policy of the law, and any promise founded on such agreement is also void.

<p>1. Under Comp. Laws 1887, § 6090, providing that a party intending to move for a new trial must serve on the adverse party a notice of his intention, designating the statutory grounds of the motion, etc., the notice of intention is a prerequisite.</p> <p>2. Where, on appeal, it affirmatively appears that no notice of intention to move for a new trial wa.s given, and the motion therefor was made and overruled on the same day, and there is nothing in the record to indicate service of the motion on opposing counsel, or their presence at the hearing', a waiver of notice of intention cannot be presumed,</p> <p>3. Where, by reason of failure to give notice of intention to move for a new trial, the court below was without authority to entertain the motion therefor, the legal status of an appeal is that of one from the judgment alone.</p> <p>4. Where the duly, recorded certificates of redemptions issued by the sheriff to redemptioners recite that all the proof necessary to entitle them to redeem was furnished, and the sheriff, after showing diligent search, and loss or destruction of many papers, testifies that he was satisfied that a proper showing of the right to redeem was made, and he is corroborated in this by the attorney for the redemptioners, the evidence, after the lapse of several years, and as against a prior incumlrancer, who was guilty of laches, shows a sufficient compliance with the formalities prescribed by statute for redemption.</p> <p>5. By accepting and retaining the full amount of redemption money, the purchasers at judicial sale waive legal defects in the redemption procedure.</p> <p>6. An incumbrancer who doesjnot attempt to redeem from an unquestion- „ ed sale under a prior mortgage cannot challenge the regularity of a redemption therefrom by a junior incumbrancer.</p> <p>7. An incumbrancer is not prejudiced by the fact that a sheriff’s deed under a prior mortgage foreclosure is made to a junior incumbrancer as redemptioner, instead of to the prior mortgagee as purchaser.</p> <p>8. Comp. Laws 1887, §§ 5150, 5151, give creditors having subsequent liens by judgment or mortgage the right to redeem from a mortgage fore- ' closure. Section 5152 provides that the property may be again, and as often as a redemptioner is so disposed, redeemed from any previous rédemption. Section 5154 provides that, if no redemption is made within a year, the purchaser is entitled to a conveyance, or, if so redeemed, whenever 60 days have ela.psed, and no other redemption has been made, the last redemptioner or his assignee shall have a deed; but in all cases the judgment debtor shall have an entire year in which to redeem. Section 4339 gives to one having an inferior lien a right to redeem, and to he subrogated to all the benefits of a superior lien, upon sátisfying the claim secured thereby. Section 5155 provides that when the debtor or his successor in interest redeems, the effect of the sale is terminated, and he is restored to his estate. Held, that op redemption by a junior execution creditor from the foreclosure of a prior mortgage he still retained his character of execution creditor, and, in addition, of one subrogated to the prior mortgage.</p> <p>9. A possible redemptioner, who remains inactive during the entire period of redemption, and permits an actual redemptioner to receive a sheriff’s deed, thereby loses his right of redemption.</p> <p>10. A redemptioner is not bound by a secret oral agreement by which his redemptionee has promised to pay an intermediate lien.</p>

<p>Appeal from circuit court, Lawrence county, Hon. Joseph B. Moore, Judge.</p> <p>Action by. Otto P, Th. Grantz against the Deadwood Terra Mining Company and others. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Comp. Laws. Dak. 1887, § 7301, provides that a plea of former jeopardy may be interposed either with or without a plea of not guilty; section 7319 provides that an issue of fact arises on a plea of not guilty and on a plea of former jeopardy and section 7320 provides that all issues' of fact shall be tried to a jury. Held that, where pleas of not guilty and former jeopardy have been interposed in a criminal case, there must be a verdict on both pleas before a judgment dan be entered against defendant.</p> <p>2. Under a plea o f former jeopardy in a’prosecution for the theft of one of several animals found killed and dressed in defendant’s barn, evidence of defendant’s acquittal on a trial for the theft of one of the other animals was admissible, even though the animals belonged to different owners, as the whole transaction would he but one crime if the animals were taken at the same time and in one act, and it was for the jury to determine whether they were thus taken.</p>

Hon. Joseph B. Moore, Judge. Action by the board of education of the city of Deadwood and another against John Mansfield and others. Prom a judgment for plaintiffs, defendants appeal. No title can be acquired, under the provisions of the town-site law, to lands known to be valuable for minerals, but that such lands are free and open to exploration occupation and purchase for mining purposes.

Hon. Frank B. Smith, Judge. Action by P. H. Brannon against White Lake township. Judgment for defendant, and plaintiff appeals. A township warrant is prima facia evidence of the indebtedness of the township and an action may be maintained thereon by the payee or his assignee. Mortgage Co. v. Mitchell, 1 S. D., 593; Hefflemau v. Pennington Co., 3 S. D. 162. A township is not liable on an order drawn on its treasurer until alter demand and refusal to pay.

<p>1. The objection that the question does not call for the best evidence must be made to the question itself, and it is too late to raise it by mot.on to strike out the answer.</p> <p>2. An answer by a witness to a question as to the amount of wheat raised on certain land, that he. thought there must have been about 1,200 bushels, by the looks of the crop, was not objectionable, as a mere guess, but gave the witness’ best judgment as to a fact.</p> <p>3. "Where, in an action for the conversion of a crop of wheat covered by a mortgage stipulating that the mortgagor should not be required to deliver any portion to his mortgagee if he failed to raise more than 10 bushels per acre, the mortgagee testified that, judging from the looks of the crop, he thought the mortgagor must have raised about 1,200 bushels on 70 acres, there was prima facie proof that more than 10 bushels per acre was raised.</p> <p>4. In an action by a mortgagee for the conversion of a crop of wheat covered by his mortgage, the evidence examined, and held to support the finding of the jury as to the quantity of wheat delivered to defendant.</p> <p>5. Where, in an action for the conversion of a mortgaged crop of wheat, plaintiff showed the grade and price of one load delivered to defendant, and that the wheat was all from the same tract and delivered the same day, and there was no conflicting evidence, the jury was warranted in finding that the wheat was all of the same grade and value as the load referred to.</p> <p>6. Where an opposing party was served with notice to produce an original book of accounts1 and its counsel admitted at the time objection was made to the introduction of a memorandum that the book had been destroyed,'it was competent to prove the contents by the memorandum.</p> <p>7. Where there was sufficient evidence to support the general and special verdicts, independent of the admissions in an original superseded answer, and the findings clearly indicate that the jury did not consider the answer, its admission in evidence was harmless error.</p> <p>8. In an action for the conversion of a mortgaged crop of wheat, it was im material whether the mortgagee ever foreclosed the mortgage, where by its-terms he was entitled to have the wheat delivered to him at the time it was converted. Fuller, J., dissenting.</p>

Action by Donald A. McPherson and others against James Julius and others. From a judgment in favor of plaintiffs, defendants appeal. A bill of exception may be settled after an appeal has been perfected. Implement Co. v. Porteous 7 S. D. 84; Coulter v. Ry. Co., 67 N. W, 1046; Hedlnn y. Holy Terror M, Co., 85 N, W. 861; McGillycuddy v. Morse 7 S. D. 592; Moe v. Railroad Co., 50 N. W. 715.

<p>Error to circuit court, Moody county, Hon. Joseph W. Jones, Judge.</p> <p>Rich Hayes was convicted of rape, and brings error.</p>

<p>Appeal to circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Mary Garrigan against John T. Thompson and others. Judgment for plaintiff, and defendants appeal.</p>

Joseph B. Moore, Judge. Action by V. C. Sweatman and another against Daniel D. Báthrick. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from circuit court, Hughes county. Hon. Loring E. Gaefy, Judge.</p> <p>Action by Thomas Neeley against David E. Roberts. From a j udgment for defendant, and from an order denying a new trial, plaintiff appeals.</p> <p>Where the contract, or duty concerning personal chattels, amounts to a trust, the performance of such a duty will be specifically enforced, no matter what the nature of the particular property may be. Cowles v. Whitman, 10 Conn. 121; Johnson v. Brooks, 93 N. Y. 337; Goodwin Co.’s Appeal, 117 Pa. 536; Parker v. Garrison, 61 Ill. 250; Kimball v. Morton, 43 Am. Dec. (N. J.) 62; McGowen v. Remington, 12 Pa. St. 6; Simes v. Emerson, 46 Pa. St. 309.</p> <p>The bill makes a case for the interferences of a court of equity, upon the fundamental rule of equity, jurisdiction that there is nota plain, adequate and complete remedy at law. 2 Story Eq. Ju. secs. 718, 708. 89. 721; Clark v. Flint, supra; Mechanics’Band of Alexandria v. Seaton, 1 Pet. 299; Osborne v. the Bank of the United States, 9 Wheat. 738; Hood v. Rowdiff, 3 Hare R. 303; Adderly v. Dixon, 1 Sim. & Stu. 608; Sullilivan v. Luck, 1 Md. Ch. Dec. 59.</p> <p>The cause consists of two causes of action, and the defendant did not demur to the complaint on the ground of a misjoiner of causes of action, or upon any other ground of demurr■er, hence he waived such point. Gates v. Keiff, 7 Cal. 124; Marins v. Bicknell, 10 Cal. 217.</p> <p>While it is a general rule that contracts for the sale and transfer of personal property will not be specifically enforced, yet, if there are circumstances in view of which a judgment for damages would fall short of the redress which the plaintiff’s situation demands, as that by non-performance he will be greatly embarassed and impeded in his business plans or involved in a loss of profits which a jury cannot estimate with any degree of certainty, equity will decree specific performance. Suiter v. Davis, 88 Cal. 450; Duff v. Fisher, 15 Cal. 375; Treasurer v. The Com. M. Co., 22 Cal. 390; McLaughlin v. Piatti, 27 Cal. 463.</p> <p>It doe's not, appear that this court has jurisdiction to review the judgment, the order overruling the motion for a new trial, or the order setting aside the report of the referee, or any intermediate order. Such jurisdiction must affirmatively appear. It will not be presumed. There is nothing designated for review. The cause must be considered in this court upon the printed record alone, except in case of disagreement between abstracts. Valley Land and Irrigation Co. v. Schone 2 S. D., 344; Noyes v. Lane 2 S. D., 55; First Nat. Bank v. Northwestern El. Co. 2 S. D , 356; Bern v. Bern 4 S. D., 138.</p> <p>The California Practice Act. of 1851, Sec 344, provided: “Upon an appeal from a judgment the court may review any intermediate order involving the merits and necessarily affecting the judgment ” The section so remained until 1876 when there was added to it in the revision of the code the clause, “Except a decision or order from which an appeal might have been taken.” But the adding of this clause was only a statutory declaration of the decisions of the courts already pronounced under the section as it had before existed. The courts of that state had already held in repeated cases that upon an appeal from a final judgment, an order made in a cause which order is itself by the statute made the subject of a distinct appeal, cannot be reviewed. McCourtney v. Fortune, 42 Cal., 387; Regan v. McMahon, 43 Cal., 625; Barham v. Hostetter, 67 Cal., 276; Hihn v. Peck, 30 Cal., 281; Barry v. Barry, 56 Cal., 10; Allender v. Fritts, 24 Cal., 447.</p> <p>The rule has been here laid down that the trial court in a cause tried before it on issues of fact without a jury would not be reversed on its findings of fact, unless there is a clear preponderance of evidence against such findings. Randall v. Burke Tp., 4 S. D., 337; 57 N. W., 4; Reagan v. McKibben, 76 N. W., 943; Jasper v. Hazen, 4 N. D., 1; 58 N. W., 454.</p>

<p>Appeal from circuit court, Brown county; Hon. A, W. Campbell, Judge.</p> <p>Action by William H. Weeks, as trustee, against Simeon H. Cranmer and others, to quiet title, From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from circuit court, Campbell county. Hon. Loring E. G-affy, Judge.</p> <p>Action by Frederick W. Boettcher against T- J. Thompson and wife. Judgment for defendants, and plaintiff appeals.</p>

Action by Elliott M. Root and others against Thomas Sweeney to recover on a contract of guaranty. Prom an order sustaining a motion to dismiss the action, plaintiffs appeal. Upon the reversal by the Supreme Court of the order of the court below sustaining defendant’s demurrer to the amended complaint and remanding the case for further proceedings, the case stood in the court below precisely as it would have stood if the court below had overruled the demurrer.

<p>The determination of the amount of assessment to which a member of a mutual hail insurance association is liable, which requires merely an inspection of the by-laws and books of the association, does not require examination of a long account, within Laws 1891, p. 231, c. 100, § 2, providing for'a compulsory reference when the trial of an issue of fact requires the examination of a long account.</p>

Julian Bennett, Judge. Action by Marinda Aldous against William Olverson. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. A voluntary conveyance is good as against subsequent creditors, unless executed as a cover for future schemes of fraud.

<p>And twenty-two others.</p> <p>Appeal from circuit court, Roberts county.</p> <p>Actions by Morris H. Kelly against Paul Kvello and twenty-two others.</p> <p>Judgments for plaintiff, and defendants appeal.</p>

Hon. W. G. Rice, Judge. / Joseph Weckert was convicted of larceny, and brings error. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. It is not necessary for the defendant to satisfy the jury that he was in fact the owner of the goods alleged to have been stolen, or that he took them under a bona fide claim of right.

<p>Appeal from circuit court. Grant county. Hon. J. H. McCoy, Judge.</p> <p>Action by George W. Murphy against J. 0. Pierce. Judgment for defendant. Plaintiff appeals.</p>

<p>A chattel mortgage on certain cattle was given to secure the mortgagee for. his agreement to pay certain .notes given by the mortgagor to a third person. The cattle were in the possession of defendant under a contract to care for them for three years for, half their increase, and the mortgagor’s interest in this contract was.assigned to the mortgagee, also for security. The mortgagee never paid any part of the notes, and stated that he took the mortgage for the payee of the notes. Held, that there was no consideration for the mortgage and assignment, so that the mortgagee could not recover from defendant on his turning the cattle over to the payee of the notes with the consent of the mort* gagor.</p>

Frank B. Smith, Judge. Action by C. B. Waite against George L. Fish. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>In an action to recover money loaned and advanced to defendant, and for labor and services performed, defendant filed an answer denying each and every allegation of the complaint, and, by way of defense and counter claim, set up that he delivered to plaintiffs 257 head of cattle, to be delivered by them in London and there sold by them, at a cost of $10 each; that plaintiffs, in violation of the agreement, delivered 182 head in Liverpool, charging him $22.75 per head; that $2,320.50 was due from plaintiffs to defendant. The answer contained a number of similar counterclaims for breaches of contract by plaintiffs, and demanded judgment for $9,974.71, including $5,000 for the wrongful issuance of an attachment. Held, error to order a reference, the pleadings not showing that the examination of a long account was necessary.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones. Judge.</p> <p>Action by Gustav Anderson against Reid Matheny and another. From a judgment for plaintiff, the defendant named appeals.</p> <p>Parol evidence may be given to show that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto or he may set up any agreement in regard to the note which makes its enforcement inequitable. Crossman v. Fuller, 17 Pick, 171; Trice v. Yeoman, 54 Pac. 288; Chaddock v. Vanness, 85 N. J. L.> 517; Benson v. Post, -9 N. W. (Dak.) 684; Manufacturer’s Furnishing Co. v. Kremer, 7 S. D. 463; Lawrence v. Fox, 20 N. Y. 268; Osborn & Co. v. Stringham, 4 S. D. 593; Meyer v. Davenport Elevator Co., 12 S. D. 172; Bank v. Guthrie, 78 N. W., 994; Rankin v. Mathieson, 75 N. W. 196; Mathewson v. Jones, Am. Dec. 647.</p> <p>A party may show that the instrument' relied upon was executed in part performance only of an entire oral agreement or that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto or he ■ may set up any agreement in regard to the note which makes its enforcement inequitable. Chapman v. Dobson, 78 N. Y. 74, Benton v. Martin, 52 N. Y. 572; Smith v. Mussetter, 59 N. W. 995.</p> <p>The whole agreement was admissable in evidence on the part of the defendant. Greenleaf on Ev., Yol 1. 16th Ed., Sec. 284 A., and cases cited; Hope v. Balem, 58 N. Y. 380; Hutchinson v. Hebbard, 34 N. Y. 24; Battennan v. Pierce, 3 'Hill 172, 178: Potter v. Hopkins. 25 Wend, 417; Barry v. Ransom, 12 N. Y 462; Roberts v. Greig, 62 Pac. 574; Burke v. Dulaney, 153 U. S. 228; Hurlbert v. Dusenberry, 57 Pac. 860; Brewing Co. v. Barets, 48 Pac. 834; Ware v. Allen, 128 U. S. 591-596.</p> <p>Section 3524 C. L. provides “The execution of a contract in writing whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.”</p> <p>Prior or contemporaneous verbal contracts or agreements cannot be shown, to in any way change or vary the terms of a written contract. Te Poel v. Shutt et al, 78 N. W. Rep., 288; Western Manufacturing Co. v. Rogers et al, 74 N. W. Rep., 849; First State Savings Bank, etc. v. Webster, 79N. W Rep., 1068; Phelps v. Abbott, 72 N. W. Rep. 3; Black Hills.Bank v. Kellogg, 56 N. W. Rep , 1071; Dean v. Bank, 50 N. W. Rep., 831; Hutchinson v. Cleary,-;55 N. W: Rep.,-729;- NationaVBank v. Lang. 49 N. W. Rep., 414; N. W. Fuel Co. v. Burns, 45 N. W. Rep., 699; Plano Co. v. Root, 54 N. W Rep., 924; Strunk v. Smith, 66 N. W. Rep., 926; Thompson v. McKee, 37 N. W. Rep., 367; Washabaugh v. Hall, 56 N. W. Rep., 82.</p>

<p>1. In an action against an insurance company, where plaintiff alleged that the acceptance of premium and application by the company’s agent constituted an insurance contract, the burden was on plaintiff to show that it was understood at the time of signing the application that the risk was to begin on that day.</p> <p>2. Unreasonable delay of an insurance company in acting on an application for insurance does not amount to acceptance.</p>

<p>. Appeal to circuit court, Roberts county; Hon. A. W. Campbell, Judge.</p> <p>Action by the Reservation State Bank against Peter Holst and W. D. Lane. Judgment for defendant Lane, and plaintiff appeals.</p>

Joseph B. Moore, Judge. Action by the Price & Baker Company against James Madison. Prom a judgment for defendant, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by Delwin A. Jones and another against Wilson S. Jones and another. Verdict for defendants, and from an order granting a new trial defendants appeal.

<p>Appeal from circuit court, Minnehaha county.' Hon. Joseph W. Jones, Judge.</p> <p>Action by Mary Garrigan against Samuel Kennedy and others. From a judgment in favor of plaintiff, defendants Kennedy and Smith appeal.</p>

<p>1. It was not competent for the hoard of township supervisors, or for a member thereof, to enter into a contract with plaintiff for the repair of a road, whereby a debt would be (treated on the part of the town. 2. The fact that a town received the benefit of plaintiff’s labor under an unauthorized contract was immaterial.</p>

■ Appeal from circuit court, Brookings county; Hon. Julian Bennett, Judge. Action by August Reinke against the German Evangelical Lutheran Trinity Church. Judgment for plaintiff. Defendant appeals.

<p>Comp. Laws 1887, § 5151, authorizes a judgment debtor or a “redemptioner” to redeem property sold on execution within one year after the sale. Section 5152 declares that, if a redemptioner redeems, “the property may he again and as often as a redemptioner is so disposed, redeem from any previous redemptioner within sixty days from the last redemption,” and “if no redemption is made within one year after the ’ sale, the purchaser or his assignee is entitled to a conveyance,” etc. Held, that the right of the judgment debtor or of his successor in interest to redeem, either from the purchaser at thesale or from a prior “redemptioner, ” expires at the end of a year from the sale; a prior redemption within the year not extending the time.</p>

<p>Appeal from circuit court, Pennington county. Hon. Levi McGee, Judge.</p> <p>Action by Ada A. Emerick against the Sweeney Cattle Company and others. From a judgment in favor of plaintiff, defendants appeal.</p>

A. W. Campbell, Judge. Petition by Frank R. Coughran against the city of Huron, a corporation, to have a certain quarter section of land excluded from the city. Judgment for plaintiff. Defendant appeals.

<p>1. Under Comp. Laws 1887, § 1643, as amended by Laws 1893, c. 160, p. 273 (Rev. Pol. Code, § 2225), requiring tbe court in an action to restrain the collection of a tax, or to recover any taxes before paid, or to recover the title of any property sold for taxes, or to restrain payment of taxes, to render judgment for the amount of taxes due on the property, in an action against a county to invalidate tax proceedings for' a particular year so far as they related to the land described in the complaint, the county is entitled to recover judgment for the just amount of the taxes on the laud unpaid.</p> <p>2. Plaintiff, in an action to invalidate the tax proceedings fop a particular year so far as they related to the land described in the complaint, need not tender to the county the amount of taxes justly recoverable.</p>

<p>1. The transfer of a note secured by a mortgage carries with it the security as an incident.</p> <p>2. Where a note and mortgage to a firm were taken in the name of one of the partners, and after his death the firm business was conducted as before, without any accounting or settlement of the partnership business between the surviving partner and the deceased’s representative, and the surviving partner indorsed the note to plaintiff, the indorsed note, together with other facts, prima facie established plaintiff’s ownership of the note and mortgage.</p> <p>3. In a suit by plaintiff to quiet title to the mortgaged premises, it appearing that there had been no objection on the part of the deceased partner’s administrator, or on the part of any creditor of the estate, to the failure of the surviving partner to settle the partnership, and defendant not making any attempt to establish any right or interest in the note and mortgage, a judgment dismissing the complaint was erroneous.</p>

<p>1. In an action for several injuries alleged to have been sustained by defects in a city sidewalk, it was error for the court to permit plaintiff to give her judgment as to the amount of damages she had sustained for each injury.</p> <p>2. Where in an action for injuries, there was no evidence of permanent disability, tables showing expectancy of life were inadmissible.</p> <p>3. In an action for injuries on a city sidewalk, evidence that plaintiff had told witness she had fallen on the sidewalk not at the time of the injury was inadmissible, as hearsay.</p>

<p>Where a stake driven by a township engineer on land belonging to the township, for the purpose of indicating where a well should be driven by the township, was’ wrongfully removed by an unknown party and placed on the land of an individual, and after the well had been sunk there the latter sold the land, neither he nor the purchaser believing the well to be on the description sold, a decree in a suit by the township, providing that the purchaser reimburse the township for the well, or convey to it for a consideration the ground on which the well was situated, was proper.</p>

Hon. Julian Bennett, Judge. Action by the Brookings Land and Trust Company against Theman J. Bertness and wife. Judgment for plaintiff. Defendants appeal.

Hon. W. G. Rice, Judge. Action by John G. Wenke against Nelson A. Hall and wife and others. From a judgment for plaintiff, defendant Hall and wife appeal.

Hon. A. W. Campbell, Judge. Action by Louis Robeson, administrator of William R. Robeson, deceased, substituted as plaintiff by order of the court, against J. M. Dunn and others, to set aside an alleged fraudulent release of a trust deed, and to foreclose it. Judgment for plaintiff. Defendants appeal.

Hon. Joseph W. Jones, Judge. Action by H. A. Ramsdell against Hartwell Duxberry. This action was first decided by this court in an opinion-found in 14 S. D. 222, 85 N. W. 221, in which opinion the judgment of the trial court in favor of plaintiff was reversed and a dismissal of the action ordered. This opinion is upon a rer hearing subsequently granted.

<p>1. Deeds executed by a city for the nonpayment of assessments for local improvements convey title superior to an existing mortgage on the property.</p> <p>2. The law of 1890 being simply a revision of the law defining the powers and duties of cities relating' to making local improvements and levying special assessments therefor, constituting Comp. Laws 1887, §§ 959-999, which declared that assessments should be a lien on the property, a mortgage on city property executed subsequent to 1887, and before the law of 1890, was not affected by such later act.</p> <p>3. Laws '1890, p. 98, c. 37, art. 16, § 32, prescribes the forms of a deed conveying land for the nonpayment of special assessments, and concludes as follows: “In testimony, whereof the city treasurer * * * has hereunto set his hand and seal,” etc. Section 34, p. 99, provides that the deed shall he executed under the “hand” of the city treasurer, attested by the city auditor under the.seal of the city. Held, that the omission of the seal to the signature of the city treasurer constitutes no defect in the deed.</p> <p>4. Since the law of 1890 relating to special assessments for local improvements, and providing for the sale of land for the nonpayment of assessments levied thereon, makes no provision for the giving of notice to the person in whose name the land is assessed that a deed thereof will be demanded, and since Laws 1891, p. 68, c. 14, g 121, requiring the holder of a tax certificate 'to give notice before obtaining h tax. deed, is not applicable to the sale of land for the nonpayment of special assessments, a deed by a city for the nonpayment of assessments is valid, without- the giving of any notice that a deed will be demanded.</p> <p>5. The execution of a deed by a city, conveying land for the nonpayment of special assessments, is prima facie evidence of the giving of notice to the person in whose name the land whs assessed that a deed would be demanded, if any such notice, were required.</p>

<p>1. In a prosecution for rape it was error to refuse to permit a female witness for the state, and in whose presence it was claimed the offense was committed, to be asked on cross examination whether or not she had not been promised by the state’s attorney fees of $1 a day while she was in jail for the purpose of testifying in the cause, for the purpose of effecting her credibility.</p> <p>2. Where, in a prosecution for rape, the state claimed that defendant had given prosecutrix money in consideration o'f her consent to sexual intercourse, the defendant, though admitting the giving of money, claimed it was given to prosecutrix and her companion at their solicitation and representation that they had been robbed, which representations they denied, evidence of a third person concerning a conversation with prosecutrix and her companion in defendant’s presence at the time the money was paid, tending to show that they stated they had been robbed, was admissible as res gestse.</p>

<p>1. Where a complaint, claiming damages for injuries sustained on a sidewalk is objected to on the introduction of evidence as not stating a cause of action, the Supreme Court, to sustain it, will indulge every reasonable presumption, and judicially notice that the statute requires incorporated cities to keep their streets in repair.</p> <p>2. The court will entertain an objection at the trial that a pleading does not state facts to constitute a cause of action only when it is incapable of being made good by amendment.</p> <p>3. A complaint in an action againt a city for injuries on a sidewalk, alleging the defective condition of the walk, that the defect was known tc the munincipal officers, and that plaintiff was injured while passing along the walk, without any fault of his, is sufficient as against an objection at the trial that it does not state facts to constitute a cause of action.</p> <p>4. Where an injury sustained by plaintiff never kept him from his place of business, or materially interfered with his usual employment, evidence, in an action to recover for loss of time, as to the damages sustained therefrom, is incompetent.</p> <p>5. Where, in an action against a city for injuries on a defective sidewalk, the evidence fails to show the defendant’s duty to keep the particular place in repair or that its officers knew or might have known of the defect, with which plaintiff was familiar, a motion to direct a verdict for defendant should be granted. *</p>

Hon. Joseph W. Jones, Judge. Proceedings between Moody county and Minnehaha county to determine the legal settlement of Cornelius W. Bigelow, an insane person. Prom an order in favor. of Moody county, Minnehaha county appeals.

Hon. Levi McGee, Judge. Action by William Black against Arthur Linn and others. Judgment for defendants, and from an order refusing a new-trial, plaintiff appeals. If an officer not judicial abuses his office either by an act of omission or commission, the consequence of which is an injury to an individual an action lies against such officer for damages. Robinson v. Chamberlain, 34 N. Y. 389; Adsitv.

Hon. Julian Bennett, Judge. Proceedings by William M. Brooke against David Eastman, as commissioner of school lands, to compel the issuance of patents to certain school lands to plaintiff. Prom a, judgment for plaintiff, deiendant appeals.

<p>1. Costs are limited to items specified by statute.</p> <p>2. An appellant granted costs could not tax items “for stenographer’s fees to perfect appeal record” and “for appeal bond;” there being no statute specifically allowing such items.</p> <p>3. Decisions by the supreme court based on a statute which bad in fact • been repc aled when the decisions were rendered cannot control Subsequent decisions.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action by Mary Garrigan against Joe Huntimer and others. From a judgment for plaintiff, defendants appeal.</p>

Hon. Joseph W. Jones, Judge. Action by J. H. Williamson against Lake County and others. Appeal by defendant Lake county from an order directing'the clerk to retax costs in the action.

<p>Appeal from circuit court, Moody county, Hon. Joseph W.. Jones, Judge.</p> <p>Action by W. J. Shipley againsNH. H. Platts. Prom a judgment for defendant entered on a directed verdict. Plaintiff appeals.</p> <p>.</p>

Hon. Joseph W. Jones, Judge. Action by Joe Kirby against the Citizens’ Telephone Company of Sioux Falls for an injunction. From an order vacating a preliminary injunction, plaintiff appeals. The use of the street for telephone poles is not a street use proper, and is a new burden or servitude thereon, inconsistent with the use of the street for travel. Donovan v. Allert 91 N. W. 441.

<p>Appeal from circuit court, Codington county. Hon. Julian Bennett, Judge.</p> <p>Action by Richard H. Morrison against Thomas O’Brien. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal.</p>

Hon. E. G. Smith, Judge. Action by tbe Great Northern Railway Company against the town of Viborg and others. Judgment for defendants. Plaintiff appeals. ■ A public road cannot be established by prescription or limitation while the land over which the road runs is unimproved, or unoccupied prairie land over which people may travel at their pleasure.

<p>Amendment of the bill of exceptions allowed by the trial court without good cause shown, on application two years after entry of judgment and settlement of the bill of exceptions, by adding the specification of particulars in which the evidence is deemed insufficient to sustain* the judgment, being unauthorized, will be struck out on motion.</p>

<p>Under Rev. Code Cr. Pro. §§299, 300 providing that an issue of fact, which must be tried by the jury, arises on a plea of former acquittal, it is error for the court to pass on the evidence on such plea without submitting it to the jury.</p>

<p>On motion to modify judgment by striking therefrom allowances of costs and disbursments as taxed by the clerk.</p>

Hon. Joseph W. Jones, judge. Action by Iowa National Bank of Ottumwa against Sherman & Bratager on a promissory note. From a ^judgment for plaintiff, defendants appeal.

<p>1. Rev. Pol. Code § 2214, requires that, when the validity of a tak deed arises in an action; the suit shall not proceed in favor of the party assailing the deed, unless he shall deposit in court an amount sufficient to redeem from the tax sale, together with costs, etc. Held, that the section did not apply to a suit to set aside a tax deed which the plaintiff conceded on the record and the defendant’s answer showed to have been merged in the fee title.</p> <p>2. Where a tax deed is set aside for defects not affecting the validity of the tax, a judgment decreeing that the party attacking the deed shall reimburse the purchaser, whose claim shall be a lien on the property, rendering it subject to sale on execution, is within the equitable powers of the court.</p>

<p>1. The word “judgment” in Bankr. Act July 1, 1898, c. 541, § 671 30 Stat. 565 (U. S. Comp. St. 1901, p 3450), providing that ail levies, judgments, attachements, or other liens obtained through legal proceedings against an insolvent, within four months prior to filing of petition in bankruptcy against him shall be void if he is adjudged a bankrupt, refers only to the lien of tho judgment, the judgment remaining an assignable claim against the estate; and the judgment creditor having assigned the judgment, and his assignee having- had execution issued thereon and goods of the insolvent levied on and sold thereunder, the proceeds being applied to satisfaction of the judgment, the judgment creditor is not liable on account thereof to the trustee in bankruptcy thereafter appointed.</p>

<p>Appeal from circuit court, Lawrence county. Hon Joseph B. Moore, Judge.</p> <p>Action by Patrick H. Smith against the Detroit & Deadwood Gold Mining Company and others. Prom a judgment for plaintiff, defendants appeal.</p>

Hon. E. G. Smith, Judge. Action by William McVay, as administrator of the estate of Timothy O ’Brien, deceased, against Hosea Bridgman and others. Judgment for plaintiff, and defendants appeal. Motion to dismiss appeal.

<p>1. Under Rev. Code Civ. Proc. § 303, requiring the bill of exceptions to specify the particular errors on which the party will rely, a bill of exceptions containing no specifications of errors of law, or the particulars in which the evidence is deemed insufficient to sustain the findings of fact, will be disregarded on appeal.</p> <p>2. A bill of exceptions which is defective, under Rev. Code Civ. Proc. § 303, requiring that it shall specify the particular errors on which the party will rely, is not cured by an assignment of errors presented for the first time on appeal.</p> <p>3. In the absence of a bill of exceptions, and in the absence of argument or an assignment of error questioning the sufficiency of the facts, it will, on appeal, be presumed that they justify the conclusions of law and the judgment. , •</p>

<p>1. There is not an unconditional acceptance of an offer to sell land for $850 net, there being added to the acceptance, “Send deed for collection to bank with abstract showing clear title, at expense of vendor.”</p>

<p>1. A contract between S., owner of land, and T., that T. is to cut the timber thereon, and deliver a certain amount of it to S., is but a license to T., which is revoked by S. conveying the land to a stranger without reservation.</p> <p>2. The granting of a new trial to . defendant is in the discretion of the court, though an amendment of the answer is necessary for introduction of the defence sought to be interposed on the new trial.</p>

<p>1. Laws 1890, p. 318, c. 150, \ 3, providing that possession of a tax receipt shall be conclusive evidence that all prior taxes on the property have been paid, and shall be a bar to their collection, is repugnant to Const, art. 6, $ 2, providing that no person shall be deprived of life, liberty, or property without due process of law; as a county is a person anda tax property, within the meaning of the section.</p> <p>2. Laws 1890, p. 318, c. 150, $ 3, providing that possession of a tax receipt shall be conclusive evidence that all prior taxes on the property have been paid, and shall be a bar to their collection, is repugnant to Const, art. 11, § 7, declaring that all laws exempting property from taxation shall be void. Haney, P. J., dissenting in part.</p>

<p>Appeal from circuit court, Pennington county. Hon: Levi McGee, Judge.</p> <p>Action by Irvin C. Miller against Freeman Lewis. Judgment for plaintiff. Defendant appeals.</p>

Hon. W. G. Rice, Judge. Action by Peter Godfrey against Sol Rosenthal and another. From a judgment for plaintiff, defendants appeal. A vendee in a contract for the sale of land is not ordinarily entitled, upon breach and failure to convey, to recover of the vendor, damages measured by the goodness of his bargain, or the financial benefit that would result from performance.

<p>It was error to charge on the burden of proof on an issue which, while raised by the complaint, was supported only by 'evidence which had been stricken as to all defendants but one, against whom the action was dismissed.</p>

, Hon. Julian Bennett, Judge. Application by Frank D. Schultz for the probate of the will of Bella Cormack, deceased.' From a judgment probating the will protestant appeals. Non-expert witnesses cannot express a general opinion as to sanity, nor give an opinion independent of the facts and circumstances within their own knowledge. They can detail the facts known to them which show insanity, and characterize the acts and conversations detailed as rational or irrational.

<p>Appeal from circuit court, Codington county, Hon. Julian Bennett, Judge. •</p> <p>Action by Raymond B. Baxter against R. F. Campbell. From a judgment for plaintiff, defendant appeals.</p>

<p>On rehearing. Former decision, 16 S. D. 113, disaffirmed and judgment reversed.</p>

Hon. Joseph W. Jones, Judge. Writ of habeas corpus proceedings by James Watson for his discharge from custody under a commitment issued on his conviction of peddling without a license. From a judgment directing his release from custody the state appeals.

<p>Error to circuit court, Clay county; Hon E. G. Smith, Judge.</p> <p>Sam J.- Montgomery was convicted of grand' larceny and brings error.</p>

Hon. Joseph W. Jones, Judge. Action by Edwin S. Wasem and another against Frederick Bellach. From a judgment of the county court dismissing his appeal from justice court, defendant appeals.

<p>Appeal from circuit court, Campbell county. Hon. Loring E. Gaffy, Judge.</p> <p>Action by E. W. Davis against James G. Brady. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Where appellant has filed no brief, though more than six months have elapsed since the case was placed on the calendar and regularly submitted for decision, the court will presume that the appeal has been abandoned, and will either dismiss the same or affirm the judgment, as it may deem proper.</p>

Frank B. Smith, Judge. Action by James A. Wilson against tbe city of Mitchell. From a judgment in favor of defendant, plaintiff appeals. Assumpsit will lie against a municipal corporation. Bank of Columbia v. Patterson, 7 Cranch 297; Danforth v. Schoharie T. Co., 12 Johns 227; Dunn v. Rector etc., of St Johns, 14 Johns 118; Randall v. Van Vechten, 10 Am. Dec. 193. A ratification by a city is as effectual to bind it as an original contract by express resolution.

J. H. McCoy, Judge. Action by the First National Bank of Charles City and another against the D. S. B. Johnson Land Mortgage Company and another. From an order overruling demurrer to the complaint, defendants appeal. Under the-statute § 143 Code of Civil Procedure, the causes of action united in the complaint must not only affect all the defendants, but all the plaintiffs as well. All the plaintiffs must have an interest in and be affected by each cause of action.

<p>1. In a proceeding to set aside a judgment, it appeared that the two defendants were non-residents: that service had been by publication; that the cause of action was a joint and several note executed by defendants; that on affidavit and an order of court finding “that the defendants, or one of them,” had property in the jurisdiction of the court, the property had been attached and sold to satisfy the judgment. Both defendants joined in the motion to vacate the judgment, without offering any evidence as to the ownership of the property affected by the judgment, and there was nothing in or aliunde che record to contradict the finding of the court. Held, that the finding of the court was prima facie evidence that the defendants, or one of them, owned the property.</p> <p>2. Where defendants are jointly and severally liable on a note on, which judgment had been rendered against them in a state other than that of their domicile, service being by publication, making the validity of the judgment depend on the defendants having property in the jurisdiction of the court, a finding that “defendants, or one of them, has property within the jurisdiction of the court,” is sufficient to sustain the validity of the judgment. Corson, J. dissenting.</p>

<p>Appeal from circuit court, Charles Mix county; Hon. E. G. Smith, Judge.</p> <p>Mandamus on the relation of J. F. Schilling to William H. Menzie and others, county commissioners. From an adverse judgment, defendants appeal.</p>

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Action by G. E. Rochford against School District No. 11 of Lyman county, S. D., and others. From, a judgment in favor of defendants, plaintiff appeals.</p>

<p>Under Civ. Code, § 1238, providing that an agreement for the sale of real property shall he invalid unless in writing and subscribed by the party to be charged or by his agent, a suit for the specific performance of a contract for the sale of real estate cannot he maintained without evidence of a written contract by defendant or his agent agreeing to convey the land to plaintiff.</p>

<p>1. Where defendant pleaded a previous judgment in har, and sought to introduce in evidence the judgment roll in such case, and plaintiff objected without stating any of the particulars on which the foundation for its introduction was considered defective, the fact that the various papers specified in the offer were sufficient to constitute a judgment roll, and are so denominated by counsel for plaintiff, destroys the effeet of their contention that it was incumbent on defendant to first show that such papers had been attached together and filed as required by Rev. Code Civ. Proc. I 319.</p> <p>2. Though a judgment of trespass was paid by a township, as officers of which the defendants had justified, and had claimed that the land en- • tered was a public highway, it was not conclusive against the township, in a subsequent suit against the judgment plaintiff to restrain him from obstructing the public highway, where it does not appear that the judgment defendants were sued in their official capacity, or that it was pleaded in that suit that the acts for which the judgment was given were performed on the highway.</p>

<p>Appeal from circuit court, Yankton county; Hon. E. G. Smith, Judge.</p> <p>Action by Henry P. Mader and another against the Plano Manufacturing Company. Prom an order overruling a demurrer to the complaints, defendant appeals.</p>

<p>Appeal from circuit court,.. Brookings county; Hon., Julian Bennett, Judge.</p> <p>Action by Betsey M. Swenson against Swen Swenson, John C. Jenkins, and others.</p> <p>From an order overruling defendant Jenkins’ demurrer to the complaint, he appeals.</p>

J. H. McCoy, Judge. Action by H. C. Hickox against Artemetia Bacon. From a judgment in favor of plaintiff, defendant appeals. The character of a power under which an agent may execute a deed for another depends upon the presence or absence of the' principal. If it is signed in his presence and by his direction, an oral request to do the act is all that is required.

Julian Bennett, Judge. Action by Bernard Brandreit against the Minneapolis & St. Louis Railroad Company. From an order of the circuit court, dismissing an appeal from a judgment of a justice for plaintiff, defendant appeals.

W. G. Rice: Judge. Action by Myrtle Harvey against the city of Rapid City, Plaintiff died after trial, and Charles M. Fallon, as administrator. was substituted. From a judgment for plaintiff, defendant appeals. Plaintiff’s declarations that form no part of res geste are not admissible as evidence.

<p>1. Const, art. 14, § 2, limiting the number of members of the state board of charities and corrections to five, is not violated by Laws 1903, p. 94, c. 86, creating a new board, of three members, to take the place of the old - • board, of five, with a proviso that nothing in the act shall oporate to legislate out of office any member of the old board.</p> <p>2. Const, art. 12, § 3, providing that the compensation of a public officer shall not be increased or diminished during his term of office, is not violated by Laws 1903, p. 94, c. 86, creating a new state board of charities and corrections, to take the place of the old, and, among other things, providing that the compensation of members shall be a salary of $1,500 per annum, instead of a per diem of $3, under the old law.</p> <p>3. Where the governor might, by vetoing an act of the legislature on the' ground that it interfered with his prerogative of appointment, prevent its passage, he, in effect, ratifies the appointments as made by the legislature therein by approving the act.</p> <p>4. A contention that the legislature,' having once fixed the compensation of members of the state board of charities and corrections, had no p.ower thereafter to change such compensation is not tenable. '</p> <p>Puller, J., dissenting.</p>

<p>Appeal from circuit court, Marshall county; Hon. J. H. McCoy, Judge.</p> <p>Action for an injunction by the town of Britton and others against John Guy and wife. From a judgment granting the writ, defendants appeal.</p>

<p>!•■■ An order denying a motion to Vacate a judgment by default and for leave . to answer is an appealable order.</p> <p>2. An order denying leave to renew a motion to vacate a judgment -by default, and for leave to answer is not an appealable order.</p> <p>3,- An attempt to appeal from an order which is not appealable will be treated.as surplusage where there is an appeal in the same cause from an appealable order. ■</p>

<p>Error to circuit court, Clay county; Hon. E. G. Smith, Judge!</p> <p>' Ben. J. Montgomery was convicted of grand larceny, and appeals.'</p>

Loring E. Gaffy, Judge. Joseph P. Coleman was convicted of murder, and brings error. Before an instrument can be used as a standard of comparison, it must not only be already in evidence in the case, but it must be admitted or proved to be genuine. It must be shown to be the genuine production of the person whose handwriting is in question.

<p>Under Rev. Pol. Code 1903, § 1511, relating to the detachment and exclusion of territory from incorporated cities, and providing that upon the failure of the city council to grant the request contained in a petition in the statutory form after thirty days, or upon refusal to grant such request, the petitioners may presént their petition to the circuit court, the circuit court has no jurisdiction of an action which does not show that it has been presented to the city council, or is not properly entitled, designating the parties plaintiff and defendant, or from which it does not affirmatively appear that all of the preliminary §£eps before the city council have been taken in strict conformity with the statute. Haney, J., dissenting.</p>

<p>Where a city, having power to purchase and hold real estate for the use of the city, purchases land for a pecuniary consideration named in the deed, it takes an absolute title thereto, though the deed recites that it is “understood” that the premises are deeded to the grantee “for city ball purposes only.”</p>

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Action by Sarah Richardson against Thor Dybedahl and others. From a judgment for defendants, plaintiff appeals.</p>

Julian Bennett, Judge. Action by William Bernardy against the Colonial & XJnite.d States Mortgage Company, Limited. From a judgment in favor of plaintiff, defendant appeals. A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended. Subd. 2, section 3254, Compüed Laws.