Volume 17 — Wyoming Reports

Richard H. Scott, Judge. The action was brought by X. Whiting and J. Bevan Phillips against Erastus Straup, Moses Bijur and the La Préle Oil Company to enjoin the defendants from trespassing and drilling an oil well upon certain land. The parties were rival claimants of the land as oil and gas placer mining ground, upon which conflicting locations had been recorded. From a judgment in favor of the defendants the plaintiffs prosecuted error.

Richard H. Scott, Judge. This was an adverse mining suit brought by Philip M. Brill, Henry Levy, Joel Goldenkranz, Otto Sartorious, John Hull, Jr., A. M. Bijur, Fred Winkler, and Abraham Bijur against Lawrence C., Arthur W., Edith M. B., and Jennie Phillips. The facts are stated in the opinion. Plaintiffs in error having located their claim February 10, 1903, had until the end of the year 1904 within which to do their first annual assessment work.

Richard H. Scott, Judge. Action by William E. Hamilton against J. Bevan Phillips, trustee, and Douglas Oil Fields, a corporation, to enjoin the defendants from drilling for oil and gas upon certain described premises and to exclude them from the same. From a judgment in favor of the plaintiff, the defendants prosecuted error.

<p>Suit to Enjoin Lessor's Interference Witi-i Lessee Under an Oil and Gas Lease. Following Phillips ET al. v. Hamilton, ante.</p>

Rodericic N. Matson, Judge. J. A. Starke was prosecuted for grand larceny upon an information charging the stealing of 400 sheep, the property of the Mountain Home Company, a corporation. He was convicted and thereupon prosecuted error. The material facts are stated in the opinion.

ORIGINAR proceeding- in Mandamus. The action was brought in the name of the State on the relation of Charles W. Burdick to require the respondent, William R. Schnitger, as Secretary of State, to issue notices at the time provided by law for the election of a district judge in each judicial district of the State. The facts are stated in the opinion.

Roderick N. Matson, Judge. Mandamus to require the issuance to the relator of certain city bonds. The material facts are stated in the opinion. The only authority cited by the City and its officers in the court below, is the case of Hillsborough v. Henderson, 45 Fla. 356. The Florida statute requires that the notice shall “determine” the rate of interest. Our statute is that it shall • “specify” the rate.

Charles E. Carpenter, Judge. The facts are stated in the opinion. The court was without jurisdiction to try the amended information, four terms having elapsed without trial from the time of the former imprisonment. (R. S. 1899, Sec. 5382.) This section is a statutory interpretation of Article VI, Constitution of the United States, and a similar provision of the State Constitution. The point was properly pleaded by plea to the jurisdiction, and by plea in bar.

Charuus E. Carpsntur, Judge. Heard on motion to dismiss. No exceptions were taken or reserved to the judgment and sentence, which' judgment was fully paid, satisfied, and discharged by the payment of the fine and costs imposed. The payment of a fine, even if the payment be accompanied by a formal protest made -after judgment and filing in writing, is not an exception to the judgment.

Reserved questions from the District Court, Laramie County, Hon. Roderick N. Matson, Judge. The action was brought in the District Court by Charles L. McGarvey against Daniel S. Swan, as City Treasurer of the City of Cheyenne, to enjoin the collection of a special assessment upon certain property of plaintiff, levied to pay the cost of constructing a sewer along a street upon which said property abuts.

David H. Craig, Judge. The material facts are stated in the opinion. The court erred in not instructing a verdict for defendants, the evidence failing to show insolvency of the debtor when the mortgage was given. Exemptions are not to be considered in estimating the value of the debtor’s property. (Collier on Bankruptcy, 6th Ed., 5; In re Hines, 144 Fed. 142.) The burden of proving insolvency was on the plaintiff.

<p>Eeror to the District Court, Crook Comity; Hon. David H. Craig, Judge.</p>

David H. Craig, Judge. Action brought by Charles Harden against J. W. Card, Una R. Card and others to vacate a judgment. A demurrer to the petition was sustained, and thereupon judgment rendered for the defendants. The plaintiff prosecuted error. The material facts are stated in the opinion.

Charles E. Carpenter, Judge. Heqrd on motion of defendants in error for an order requiring the transmission 'from the district court, as a part of the record, of a bill of exceptions taken by defendants in error upon the overruling of their motion to strike the bill of exceptions filed by plaintiff in error.

RESERVED questions, from the District Court, Albany County, How. Charles E. Carpenter, Judge. Frank J. Keefe, having been charged with the crime of murder in the first degree upon two informations, each charging the killing of a different person, though at the same time, was tried upon one, convicted of manslaughter, and sentenced to four years imprisonment in the penitentiary.

Charles E. Carpenter, Judge. ■ The facts are stated in the opinion. The court was without jurisdiction. A warrant was issued without any copy of complaint or information attached, and was served in a different county. The information showed upon its face that the defendant was not guilty and that from natural causes no one could be guilty of importing from without the state into Natrona County any live stock, that being an interior county of the state.

David H. Craig, Judge. Suit in equity to enforce the rights of a grantor of real estate under a contract entered into between the parties contemporaneously with the deed. Judgment was rendered for the plaintiff, and the defendants prosecuted error. The material facts are stated in the opinion. It is apparent from the contract that the transaction was not a mortgage. No personal obligation remained, the debt was extinguished.

David H. Craig, Judge. In an action brought by John D. Thurmond against John C. Weltner and Frederick H. Weltner a special master commissioner was appointed to take the evidence and report conclusions of fact and law. From an order entered in the cause fixing the commissioner’s compensation the defendants prosecuted error. The facts are stated in the opinion.

David H. Craig, Judge. Romon Martins was charged upon information, tried and convicted of the crime of obtaining money by false pretenses, and prosecuted error. The information and material facts are set out in the opinion. A check indorsed in blank by the payee is payable to the bearer.

David H. Craig, Judge. This was an action brought in the district court by Beck-with, Quinn & Company, a corporation, against Dimond Brothers, a partnership. From a judgment in favor of the plaintiff, the defendants prosecuted error. The case was heard upon the motion of defendant in error to dismiss. There being no bill of exceptions appearing to contain all the evidence, none of the errors alleged can be considered.

RESERVED Questions from the District Court of Raramie County; HoN. Roderick N. Matson, Judge.

Mandamus. The suit was brought as an original proceeding in the supreme court in the name of the State on the relation of C. E. Blair, Chairman of the Board of County Commissioners of Albany County, against Bryant B. Brooks, as governor of the state, to require the issuance of a proclamation by the respondent to the effect that a proposed amendment to the constitution had been adopted at the general election held in November, 1908.

Habeas Corpus. Andrew Ballantyne, who was confined in the county jail of Albany County under a commitment issued by one F. E. Anderson, claiming to be a justice of the peace, applied for his discharge upon habeas corpus. The facts are stated in the opinion.

Ekror to the District Court, Carbon County; Hon. Charles E. Carpenter, Judge. Mandamus to compel the county canvassing board of Carbon County to include in their count and abstracts certain ballots cast by voters absent from their own precincts, pursuant to Chapter 88, Raws of 1905. From a judgment ordering a peremptory writ the board prosecuted error. The facts are stated in the opinion.

Roderick N. Matson, Judge. Action for divorce brought by Anna Duxstad against Louis Duxstad. The action was dismissed by the district court on the ground that the plaintiff had not resided in this state for one year immediately preceding the filing of her petition. The other material facts are stated in the opinion.

Exceptions by the Prosecuting Attorney. From the District Court, Sheridan County; Hon. Carroll H. Parmelee„ Judge. The facts are stated in the opinion.

Carroll H. Parmjjlee, Judge. A dispute having arisen concerning the location of the boundary line between Sheridan and Crook Counties, the former county applied to the district court pursuant to the statute to have the line definitely settled by a survey to be made by a competent surveyor appointed by the court for that purpose. The facts are stated in the opinion.

Carroll H. Parmrlrr, Judge. The action was brought by Walter A. Kepford against Martin D. Jones and Mattie K. Jones, his wife, to enjoin the defendants from interfering with the plaintiff’s enjoyment of a private right of way across certain premises of the defendants, and for damages. From a judgment in favor of the plaintiff, the defendants brought error. The .facts are stated in the opinion.

Carroll H. Parmslse, Judge. Action brought by H. W. Darrah against Fred C. Barnett in a justice’s court, and appealed by the plaintiff to the district court, where judgment was rendered in plaintiff’s favor, a motion to dismiss the appeal having been denied. The defendant prosecuted error. The facts are stated in the opinion.

Carroll H. Parmelee, Judge. Upon an information charging Ella Smith with misbrand-ing two horses with the intent then and thereby to steal the same she was found guilty and sentenced to a term in the State penitentiary, and thereupon prosecuted error. The material facts are stated in the opinion. All the evidence in the case should be considered in determining whether the verdict is contrary to law and sustained by the evidence.

Carroll H. Parmelee, Judge. Upon an information charging Charles W. Eads with the crime of larceny of a horse of the value of $100, he was tried and convicted. He thereupon prosecuted error. The facts are stated in the opinion.

David H. Craig, Judge. The Gould Land and Cattle Company, a corporation organized and existing under and by virtue of the laws of the State of Nebraska, and engaged in business in this State, brought an action against the Rocky Mountain Bell Telephone Company upon a contract for damages for the breach thereof, alleging a failure on the part of the defendant company to correctly transmit a message over its telephone line within this State.

Hon. Roderick N. Matson, Judge. The action was brought by Charles H. Strickland against Newton D. Yount and Frances Yount, to recover damages for an alleged assault and battery. From a judgment in favor of the plaintiff, the defendants prosecuted error. The material facts are stated in the opinion. The only questions of fact under' the pleadings are: First, did the plaintiffs in error commit the assault as alleged.

David H. Craig, Judge. The facts are stated in the opinion. The only point in issue as raised by the plaintiff in error is that the election at which the school district bonds in question were voted was illegal in this, viz.: that there is no law authorizing a school district to hold an'election for the issuance of bonds by any different method than that required by the statute governing general elections.