Volume 18 — South Dakota Reports

<p>1. YVhere the first, connection of witness with a stolen horse was after the larceny, when, at the request of defendant, he took the horse from defendant’s corral to a place some distance therefrom, where he traded it for other property, witness was not an accomplice, within Rev. Cr. Code § 364, providing that a conviction cannot be had on the uncorroborated testimony of an accomplice; and, in order to sustain defendant’s conviction, corroboration of witness was therefore unnecessary.</p> <p>2. Rev. Cr. Code, § 364, providing that a conviction cannot be had on the uncorroborated testimony of an accomplice does not apply to accessories after the fact.</p> <p>3. The granting or refusing of a continuance rests in the sound discretion , of the trial court, and its ruling will not be reversed except for cogent reasons.</p> <p>4. That testimony of absent witnesses in support of a motion for continuance in a criminal case is cumulative is not sufficient ground for denying the continuance, where the evidence is material, and due diligence ' has been exercised in procuring it, and there is a reasonable probability that the witnesses would be present or their evidence obtained on a trial at a subsequent term.</p> <p>5. One held to answer in the circuit court for the commission of a crime cannot rely on "the promises of witnesses to appear at the trial and testify, in order to be in a position to ask for a continuance on account of o£ their absence, but must see that they are subpoenaed, or their evidence taken, when it can properly be done, at the earliest possible date.</p> <p>Puller, J., dissenting.</p>

<p>Plaintiff sued to determine adverse claims relying on a tax deed adjudged in the action to be void. The record title was in defendant, who had delivered a deed in escrow for S., but the conditions of the eJLrow were never complied with, and the deed was surrendered to defendant. Subsequently S. had a copy made from memory, and filed it for record. Intervener claimed through S. Defendant, after the recording of the copy, failed to pay the taxes or to occupy the land, b^ut there was nothing to show that intervener was harmed thereby. Judgment was rendered for defendant, and intervener alone appealed. Held, that the failure of the court to find that defendant had not paid the taxes or occupied the. land, plaintiff not complaining, was not sufficient to justify reversal.</p>

Moore, Judge. Action by Herbert D. Hickok against the W. E. Adams Company. Prom a judgment in favor of plaintiff, defendant appeals.

Frank B. Smith, Judge. Action by Absalom Blanchette against Catharina Farsch and others. From a judgment for plafintiff, defendant Stakke appeals. A creditor who can resort to two funds will be required, as against another creditor who can resort to but one of them, to exhaust the fund upon which he has an exclusive lien, and can only resort to the other for the deficiency. Security Inves. Co. v. Richmond Nat’l. Bank, 49 Pac. 521; Paddock-Hawley Iron Co. v. McDonald, 61 Mo.

Joseph W. Jones, Judge. Action by the state against C. M. Porter and others. Prom a judgment for plaintiff, certain of the defendants appeal.

Joseph B. Moore, Judge. Action by Michael K. Donovan, administrator of Micliae^ Donovan, deceased, and others against George B. Woodcock. From a judgment for defendant, plaintiffs appeal. On motion to dismiss appeal.

E. G. Smith, Judge. Application for a writ of habeas corpus by C. M. and O. S. Rensbaw, directed to G. M. Shuck, as sheriff of Charles Mix county. From an order dismissing the writ and remanding plaintiffs to custody, they appeal.

<p>1. Where the mandate on appeal merely orders a reversal of a judgment without any other direction, it is the duty of the lower court to retry , the action.</p> <p>2. Where the trial court fails to obey the mandate on appeal, mandamus lies to compel obedience.</p> <p>PULLER, J., dissenting.</p>

<p>1. Evidence of the declarations of a person in possession of realty, that he was acting as agent, is admissible.</p> <p>2. In a suit to quiet title, a finding of the court below on conflicting evidence will not be disturbed where the reviewing court is unable to say that there was a clear preponderance of evidence against it.</p> <p>3. Code Civ. Proc. §48, defines adverse possession under color of title, as consisting, among other things, in the use of the property for the supply of fuel or of fencing timber. Held, that the cutting of firewood for the use of his family, by an agent having the care and control of property, constituted an act of possession under the statute.</p> <p>4. Under Code Civ. Proc. § 47, providing that when it shall appear that an occupant entered into possession under claim of title, exclusive of any other right, founding such claim on a written instrument, as being a conveyance of the premises, and there has been a continuous occupation, etc., the premises shall be deemed to have been hold adversely, a tax deed under which possession is taken is sufficient color of title, though invalid..</p> <p>5. A patentee of real estate left the country about 1875, and did not after-wards return. His brother lived within a mile and a half of the premises, and claimed to havo been put in charge thereof, but neither paid taxes nor asserted any title after 1880. For 23 years the claimants under a tax deed paid the taxes, and made valuable improvements on the property. Held, that the patentee and his grantee were estopped from claiming the property.</p>

Joseph B.Moore, Judge, ■ • .. ■ Action-by Samuel M. Baird against James Vines and oth»’ ers. From an order granting defendants’ motion fór a new trial after the rendition of a verdict in favor of plaintiff,, he appeals.

<p>1. Evidence in an-action against a pawnbroker for conversion of a chattel held sufficient to sustain the conclusion of the jury that plaintiff pledg-' ed the article with defendant, and that defendant disposed of it before the specified time to redeem, notwithstanding a bill of sale thereof by plaintiff to defendant,and an agreement of defendant to sell it to plaintiff, provided it was paid for by a certain time.</p> <p>2. The question whether an action at law is maintainable for conversion of property pledged, when the transacted claimed by plaintiff to have been a pledge was evidenced by a bill of sale, will not be considered on appeal, not having been raised below.</p>

<p>. : Appeal from-Minnehaha county court; Hon. Dana R, Bailey, County .Judge. •</p> <p>Action by-R.-E.-Kinkade. against C. K. Howard. Prom a-judgment-'for defendant, plaintiff appeals.</p>

<p>Rev. Civ. Code, § 1277, makes contracts restraining anyone from exercising a lawful vocation, otherwise than as provided in the following sections, ■ void.- Section'1278 enables one'selling the good will of á business'to agree with the buyer to refrain from carrying on a similar business within, a. specified , county or cityr. Section 1279 permits .partners, oij. dissolution of the partnership, to agree that none of them will carry on 1 asimilar business within the same city or' town. 'Plaintiff and defendant dissolved a partnership existing between them on July 23rd; reciting in the contract of dissolution the sale by defendant to plaintiff of his entire interest in the business, together with the good will and clientage thereof. On August 1st following, they entered into another agreement, reciting the sale by defendant to plaintiff of ’abstract books, iron . . safe, and letter press for a certain sum, and stipulated as a further,consideration that plaintiff should give defendant the free use of the abstract books, and should keep them in defendant’s office, and defendant should not compile abstracts or engage in the abstract business. Held, ■that the parties not being partners at the time of the subsequent agreement, and the sale not being one of good will, as it was sold by the first agreement, and there was no mention thereof in the subsequent one, the restraint on defendant from engaging in the abstract business was in violation of the sections of the Code above cited.</p>

<p>1. Under the provisions oí Code Civ. Proc. § 308, relative to exceptions and motions for new trial, a bill of exceptions, either on appeal from an order entered on a motion for new trial or on appeal from a judgment, should specify the alleged errors relied on for reversal.</p> <p>2. Under Code Civ. Proc. § 731, providing that persons furnishing grain to be sown or planted upon land shall have a lien on the crops produced from the seed furnished by them, and section 733, requiring such persons to file in the office of the register of deeds a written account stating the quantity of seed furnished and a description of the land upon which the same is to be sown, the description filed may include one or more tracts of land within the same county, and the account need not specify the number of bushels to be sown on each tract.</p> <p>3. To prove the execution of a chattel mortgage where one of the subscribing witnesses is absent from the county, it is only necessary to call the other witness, and in case his recollection is at fault, the mortgagor may be called and the facts of the execution of the mortgage be proved by him.</p> <p>4. Code Civ. Proc. § 734, provides that the régister of deeds shall lile and enter seed-lien statements in the manner required by law for the filing and entry of chattel mortgages. Section 740 has the same provision relative to threshers’ liens. Civ. Code, § 4386, requires chattel mortgages to be filed and indexed with numbers in regular order, and entered in a book kept for that purpose. Held, that the lienor’s duty is performed when he files a seed or thresher’s lien with the register of deeds, and, whether the register should index the lien in the chattel mortgage book or whether he should keep it in a separate index book, the lienor is not responsible, nor is his lien impaired, if the register pursues the wrong course.</p>

<p>Appeal from the circuit court, Charles Mix county; Hon, E. G. Smith, Judge.</p> <p>Action by Ralph R. Bowdle and others against Frank S. Jencks and another. From a judgment in favor of defendants, plaintiffs appeal.</p> <p>That the law of sovereignty in which real property is situated governs, as to transfer of such property, whether conveyed absolutely, or by way of mortgage. Continental Bank v. Jackson et al., 7 S. D. 140.</p> <p>Strangers who claim ownership to property involved in title deeds which are the subject of replevin action are not bound to interfere, but may determine their rights to the property in separate action. Cobby on Replevin, Sec. 1283.</p> <p>A mere contract or covenant to convey at a future time on the purchaser performing certain acts does not create an equitable title. Phoenix Insurance Co. v. Caldwell, 58 N. E'. 315; Smith v. Phoenix Ins. Co., 27 Pac. 736; Richter v. Selin, 8 Serg, & R. 439; Wells v. Caiman, 107 Mass. 514; Davidson v. Ins. Co., 71 la. 532; Thompson v. Gould, 20 Pick. 134; Dexter v. Norton, 47 N. Y. 62; Powell v. Dayton, 8 Pac. 544; Gould v. Murch, 35 Am. R. 325; Kinney v. Hickox, 38 N. W. 816.</p> <p>If loss or depreciation in value occurs during a delay in carrying the contract into effect, which is caused by the vendor’s own laches, default, inability to make title and the like, then the purchaser does not bear such loss or depreciation, but is excused from performance. Also 22 Eny. Law 1048, Sub-Div. IX; Kinney v. Hickox, 24 Neb. 167, 38 N. W. 816; Civil Code, Sec. 2345, 2346. Pomeroy on Contracts, Sec. 322.</p> <p>The general objection that the evidence is incompetent and immaterial does not sufficiently present a question for review. Olson v. Burlington C. R. & N. R. R Co., 12 S. D. 326, 81 N. W. 326.</p> <p>The law of the state where the land is situated governs as to the character of the title actually given is one of general application, and applies to agreements to convey. See Holcom v. Wright, 5 App. D. C. 76; Garder C. S. Co. v. Miller, 157 111. 225; Lathrobe v. Winans, 89 Md. 636, 43 Atl. 829; Commercial Bank v. Jackson, 7 S. D. 140.</p> <p>The effect of an executory contract for the sale of land, in working an equitable conversion, and in clothing the purchaser with an equitable estate in the land, and the vendor with an equitable ownership of the purchase price. As soon as the contract is finally concluded, although it is wholly executory in form, these rights and estates become fixed and vested. It follows, therefore, that the purchaser, being the equitable owner, is entitled to all the benefits and assumes all the risks of ownership. Pomeroy Equity, § 1406; Smith v. Phoenix Ins. Co., 91 Cal. 323, 71 la. 532; Dunn v. Yakish, 61 Pac. 926; Gilmore v. Gilmore, 57 Pac. 505; "Williams & S. S. & D. D. Co. v. Houghton, 48 Atl. 85. '</p> <p>In an executory contract for the sale of land, the equitable title in the property vests in the vendee, and the vendor retains the legal title as security for the deferred payments of the purchase price. • First Nat. Bank v. Edgar, 91 N. W. 405.</p>

■ Appeal- from circuit court, Marshall county; Hon. Julian Bennett, Judge. Action by the Val Blatz Brewing Company against Madison-Dalrymple. From an order setting aside the report of a referee, plaintiff appeals. Chap. 100, Session Laws 1891, does not make residence of a releree within the state a jurisdictional prerequisite. This statute does not designate the qualifications a referee must possess.

<p>1. That defendant was erroneously advised, and honestly believed that the payment of delinquent taxes and costs was essential to her right to make defense or to answer, afforded no ground for setting aside a default judgment rendered against her, as her mistake was one of law.</p> <p>2. On an application to open a default judgment under Rev. Code Civ. Proc. § 112, subd. 5, providing that a delinquent party who has been served by publication may be allowed to defend, on good cause shown, within one year after the entry of judgment, it appeared that defendant’s claim to the land in suit was based on a mortgage on which no interest had been paid for over 10 years, while plaintiff relied on a tax deed regularly issued, and of record more than 3 years. There was no question that the land was liable for unpaid taxes in the amount for which it was sold, and the only irregularity alleged in defendant’s proposed answer related to a defect of description in the assessment roll and notice of sale. Defendant had had due notice of the institution of the suit, and had conferred with an attorney about it, and, according to her own statement, neglected to make defense because she could not procure the necessary money to pay back taxes and costs, which she understood would have to be-paid. The attorney with whom she consulted testified, however, that he gave her no such advice, and that, in response to his suggestion that she employ an attorney, she stated that she had no money to expend in that way. Held, that the trial court was justified in concluding that defendant had failed to show good cause for relief against the judgment.</p> <p>Corson, P. J., dissenting.</p>

<p>Appeal from circuit court, Roberts county; Hon. J. H. McCoy, Judge.</p> <p>• Action by the Dowagiac Manufacturing Company against the White Rock Lumber & Hardware Company. From a judgment of dismissal, plaintiff appeals.</p>

Loring ■ E. Gaffy, Judge. Action by Mattie L. Bennett against James A. Moore. Prom a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Frank Smith, Judge. Action by J, C- Lund against G. W. Thackery and another. From a judgment for plaintiff, defendants appeal: An instrument purporting to convey the fee simple title to land, is of no legal effect as a conveyance of real estate until the name of the grantee appears therein.

Julian Bennett, Judge. Action by Marion M. Fish against the Kirlin-Gray Electric Company, From a judgment in favor of plaintiff, defendant appeals. This accident is one which is classed as inevitable. No good and sufficient reason can be given for it. Accidents of this kind take place. Serious injuries at times result therefrom and no cause can be given for such accidents. This is an accident that belongs to that class.

<p>Appeal from circuit court, Fall River county; Hon. Levi McGee, Judge.</p> <p>Action by James W. Fowler and others against the Iowa Land Company, Limited, and others. From a judgment in favor of plaintiffs, defendant land company appeals.</p>

<p>The testimony of a witness for the state, on a trial of one charged with crime, cannot he shown by the state calling (he witness as a,witness on a subsequent trial of the accused, either as independent testimony of the guilt of the accused or for the purpose of impeaching 'the witness. '</p>

<p>1. Where a witness was permitted to refresh his recollections of a fact by examining entries in a record made by him at the time, and then testified to the,fact from the entries so made, the exclusion of the record itself is not prejudicial error.</p> <p>2. Where, on the issue of the ag-e of a person, the original record made by the clerk of the township in which such person was born, as required by law, showing the date of birth, is received in evidence, the exclusion of copies of the record as part of the records of the clerk of the district court, including the township clerk’s return of births occurring during the year, is not erroneous.</p> <p>3. On a trial for rape, on the issue of the age of the prosecutrix, evidence examined, and held to support a verdict that she was under the age of consent at the time of Lhe alleged offense.</p> <p>4; Where the evidence on trial for crime supports a verdict of guilty, though contradicted by defendant’s evidence, and the trial court refuses to vacate the verdict, the supreme court on appeal will not interfere.</p>

<p>1. Where, in a,ri action to foreclose a mortgage securing certain notes, the execution and delivery of the notes by the maker was denied, the recital of such execution and delivery in the mortgage after maturity of the, notes was insufficient, in the absence of the introduction of the notes in evidence to prove the existence of an indebtedness secured by the mortgage.</p> <p>2. Where the execution and genuineness of notes secured by a mortgage sought to be foreclosed were denied, the burden was on the plaintiff to prove that the notes were in existence, or to account for their nonproduction, and that they were in fact executed by the maker.</p>

<p>Appeal from circuit court, Spink county; Hon. J. H. McCoy, Judge.</p> <p>Action by Frank Kidman against R. A. Howard. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Findings of fact by the trial court will be presumed correct on appeal, unless the court is satisfied that they are against the clear preponderance of the evidence. i</p> <p>2. Where a co-tenant not only knew that certain repairs necessary to the preservation of the property were being made, but assented to and approved of them, and by her statements induced the contractor to enter into the contract with her co-tenant therefor, her interest in the property was subject to a mechanic’s lien for such repairs, though she did not- in terms become a party to the contract.</p> <p>Haney, X, dissenting.</p>

<p>Since Rev. Code Civ. Proe. § 364, allows a debtor nothing bub absolute exemptions against an execution on a debt incurred for property obtained by false pretenses, where in an action for the purchase price of goods it was found by the court that the goods were obtained by false pretenses the decision and judgment should have recited that fact.</p> <p>Haney, J., dissenting.</p>

Levi McGee, Judge. Action by Earle A. Chambers, as trustee, against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals.

Levi McGee, Judge. Action by W. O. Winans against Francis C. Grable, as First Bank of Edgemont, in which Wilbert W. Stewart was appointed receiver of defendant. From a judgment granting insufficient relief, and from an order refusing to vacate the order discharging the receiver, Allen G. Fisher, a claimant, appeals.

Loring E. Gaffy, Judge. Mandamus by Maurice C. Burke against Gilbert W. Collins and others, constituting the board of county commissioners for Hand county, S. £)., to compel defendants to issue to plaintiff a license for the sale of intoxicating liquors. From a judgment denying a peremptory writ, plaintiff appeals.

. Joseph W. Jones, Judge. .. Habeas corpus by the state, on the relation of Frank Kotil- • inic against O. S. Swenson, to obtain relator’s discharge from' imprisonment. From an order quashing the writ,-.relator appeals. The presence oí the defendant is absoluely necessary.' throughout the trial and the record must disclose his presence under our constitution and laws. Sec. 2 and 7, art. - .6, Bil-l-oi Rights, S. D. Const.; Sec. 301, Rev. Cd.

F. B. Smith, Judge. Action by Marcus L. Stoddard against Henry W. Lyon, James A. Smith, and others to foreclose a real estate mortgage. From a judgment for plaintiff, defendant Smith appeals.

Levi McGee, Judge. Action by tbe First National Bank of Rapid City, S. D., against Patrick B. McCarthy and others, to foreclose a real estate mortgage. From a judgment for plaintiff, defendants .Patrick B. McCarthy and another alone appeal.

Frank B. Smith, Judge. Action by Beach Crary against the Chicago, Milwaukee & St. Paul Railway Company to recover for stock alleged to have been killed by an engine of defendant’company. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Chas. H. Whiting, Judge. Action by Frank E. Stevens against F. L. Osgood and others. .From a judgment for plaintiff and an order denying a motion for a new trial, Grandy appeals.

<p>1. An action under Rev. Code Civ. Proc. § 807, by the mother of a bastard child against the father to compel him to support the child, is an action on a liability created by statute, other than a penalty or forfeiture, and is not barred by limitations in two years, but, under section 60, may be brought at any time within six years.</p> <p>2. The defense of limitations cannot be raised by demurrer, but, under the express provisions of Rev. Code Civ. Proc. ? 39, must be taken by answer.</p> <p>3. Under Rev. Code Civ. Proc. § 807, giving the mother ot a bastard child an action against the putative father to compel him to provide for the child’s support, the father of a bastard begotten in this state is liable in the action for its support, though the child was born outside the state.</p> <p>4. Where, in bastardy proceedings, defendant introduced a photograph of the child, it was not error to allow opposing counsel to call attention to the child itself, which was present in court without objection.</p> <p>5. Rev. Code Civ. Proc. § 265, provides that, when the jury have agreed, they must be conducted into court, their names called by the clerk, and verdict rendered by the foreman; that, if any juror disagrees, they must be sent out again,but, if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete; and that either party may require the jury tobe polled, which is done by the court or clerk asking each juror if it is his verdict. When a jury returned with a verdict for plaintiff, the judge and attorneys for both parties were present, but the clerk was not. The verdict was read by the court, and the jury asked by him if it was their verdict; neither party asking that the jury bo polled, and no objection being made that the names of the jurors were not called, and that the verdict was received and read by the court instead of the clerk, until the next morning. Held, that as defendant was not prejudiced by the fact that the court acted in the absence of the clerk, and no specific objection was made at the time, judgment would not he reversed for the irregularity.</p> <p>6. Under Rev. Code Civ. Proc. §811, authorizing commitment to jail for refusal or neglect of a defendant in bastardy proceedings to give an undertaking for the payment of the money found to be due, the court is authorized, on a judgment against defendant, to commit him until compliance with the order as to the giving of an undertaking, though an undertaking had been given in the justice’s court.</p>

<p>Appeal from circuit court, Beadle county; Hon. J. H. McCoy, Judge.</p> <p>Action by M. Kunz against Catharine Dinneen and another. From an order granting a new trial, defendants appeal.</p>

<p>Proceedings for the disbarment of T. P. Elliott.</p>

<p>Appeal from circuit court, Custer county; Hon. W. G. Rice, Judge.</p> <p>Action by the Custer County Bank against the county of Custer. From a judgment for plaintiff, defendant appeals.</p>

J. H. McCoy, Judge. Action by Mina A. Gould against O. C. Tucker and another. From a judgment in favor of plaintiff, defendants appeal. The issuance of the patent after the entryman has com • pleted his final proof is only a ministerial or clerical act on the part of the government and neglect or delay in the issuance of the patent by the government, when there is no appeal or con test pending, does not affect the rights of the entryman and his ownership of the property.

<p>Appeal from circuit court, Lawrence county; Hon. Levi McGee, Judge.</p> <p>Action by Lottie A. Richards against the Travelers’ Insurance Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from circuit court, Hamlin county; Hon. Julian Bennett, Judge.</p> <p>Action by the county of Hamlin against Anna Tauer. Judgment for defendant and plaintiff appeals.</p>

Joseph W. Jones, Judge. Action by G-. R. Krause against Caroline Bishop. From a judgment for defendant, plaintiff appeals.

<p>1. Where the record on appeal contains what purports to be findings of fact presented to the court by plaintiff, marked “Sustained,” but such findings are insufficient to support the judgment, the court will assume there are no findings on which the judgment was based; the judgment itself not purporting to be based on any findings of fact.</p> <p>2. In an action to vacate foreclosure proceedings had by advertisement, and ' to cancel the record thereof on the ground that the notice of foreclosure was not given for the length of time required by the Code, the entry of judgment without having made any findings of fact and conclusions of law is erroneous, under Code Civ. Proc. § 276, providing that, on the trial of a question of fact by the court, its decision must be given in writing, and that no judgment shall be rendered until after the filing of such decision, and section 277, providing that, in giving the decision, the facts found and the conclusions must he separately stated, and judgment on the decision entered accordingly.</p> <p>3. A motion to dismiss an action on the ground that the complaint does not state facts sufficient to constitute a cause of action will not lie.</p> <p>4. Code Civ. Proc. § 639. relating to foreclosure of mortgages by advertisement, provides that notice that a mortgage will be foreclosed by sale of the mortgaged premises must be given by publication for six successive weeks. Civil Code § 2445, provides that whenever, in any act providing for publishing notices, the phrase “successive weeks” is used, the term “weeks” shall be construed to mean calendar weeks, and publication on any day in such weeks shall he sufficient publication for that week. Held that, under the latter section, Code Civ. Proc. § 639, is so modified that a notice of foreclosure by advertisement which is published for six successive weeks, once in each week, is sufficient, though but thirty-seven days intervened between the first publication and the date of sale.</p>

<p>1. Const,, art. 12, §3, provides that the compensation of any public officer shall not be increased or diminished during- his term of office.. The article is in four sections, and appears under the heading, “Public Accounts and Expenditures.” The first section provides that no money shalt be paid out of the treasury, except upon appropriation by law, and on warrant drawn by the proper officer; the second provides that the general appropriation bill shall embrace only appropriations for ordinary expenses of the, executive, legislative, and judicial departments; ; the third provides that the Legislature shall never grant any extra compensation to any public officer, employee, or contractor, and contains the above provision as to increased or diminished compensation; and the fourth section provides for an itemized statement of receipts and expenditures. Const, art. 5, jj 19, provides that the term of the county judge shall be for two years, until otherwise provided by law, but makes no provision for his salary, while, on the other hand, sections 8, 15 and 30 of that article, and article 21, § 2, definitely fix and provide for the terms and salaries of the supreme and circuit judges. Held that, construed by its context, the provision of article 12, § 3, includes under the term “public officers” only state officers who draw their salary from the state treasury, and does not include the county judges.</p> <p>2. Laws 1901, p. 130, c. 104, § 3, provided for the determination of a population of a county in order to fix the salary of the county judge by requiring the county auditor to multiply the number of votes east for Governor at the preceding election by 4i; Laws 1903, p. 112, c. 104, § 1, amended this provision by providing that it should be the duty of the county auditor to file a certificate showing the population of the county “immediately after the taking effect of the act,” and at certain times thereafter, and that such population should be determined by multiplying the sum of names contained in the registration lists, made prior to the last general election, by 5. This act was passed in February, 1903, a county judge having been elected in November, 1902. Held, that the county judge was entitled -to a salary for the year 1903, based on the new method of computation.</p> <p>Haney, J., dissenting.</p>

'Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge. Action by Mary C. Murphy against the Plankinton Bank and William. E. Plankinton, as assignee thereof. From an order' granting defendants leave to serve and file an amended answer, plaintiff appeals.

Joseph W. Jones, Judge. Action by William H. Lyon against the Plankinton Bank and William E. Plankinton as assignee thereof. From an order granting defendants leave to serve and file an amended ' answer, plaintiff appeals.

<p>A judgment in condemnation proceedings is not void for want of jurisdiction, so as to be open to collateral attack, merely because the verdict assessing the damages was simply filed after the judgment in accordance therewith was entered and recorded, while Rev. Code Civ. Proc. '§ 875, provides that on return of the verdict the court shall order it to be recorded, and shall enter judgment thereon.</p>

E. G. Smith, Judge. In the matter of the estate of Niels Larsen, deceased. Froma judgment sustaining objection-to the admission of the will of deceased to probate, Lars Peter Larsen appeals. When a testator marries after the making of a will, the will is not revoked in toto, but only to the extent that the widow would take under the law if the decedent had died intestate.

<p>The act approved March 5, 1897 (Rev. Pol. Code, § 2191), providing that all taxes assessed on personal property in the state shall be a first lien on all personal property of the person against whom the personal taxes are assessed from and after December first in each year, is not retrospective.</p>

<p>1. Any error in sustaining- an objection to a question asked the state’s witness on the ground that it was not proper cross-examination is rendered harmless by the witness afterwards being- called for defendant, and then being asked and answering- the same question.</p> <p>2. On a prosecution for rape’on a female under the ag-e of consent, evidence of prior intercourse by her with others is not admissible, either as bearing on her credibility or otherwise, the question of consent being immaterial.</p> <p>3. On’a prosecution for rape, evidence of the female having ever had a venereal disease is not admissjble to discredit her.</p> <p>4. It is proper for the prosecuting’ attorney in his argument to the jury to discuss the matter of defendant, while under bond for his appearance at the trial, having absented himself from the state and failed to be present at the required time.</p> <p>5. Where defendant, on a prosecution for rape on a female under the age of consent, offered no evidence as to her age, the inference of want of diligence warranting refusal of a new trial for newly discovered evidence on that point is not overcome by defendant’s statement that he offered no evidence to overcome that of the female and her mother as to her age because at the time he had no reason to question or doubt their truthfulness as to her age.</p>

Actions by Elmer R. Juckett, trustee, against the Fargo Mercantile Company and others, and by Hattie M. Fargo against Elmer R. Juckett, trustee, and another. Actions consolidated. From the judgment the defendants in the first two actions and Hattie M. Fargo, plaintiff in the third action, appeal. On motion to strike out the bill of exceptions or statement of the case.

■ Appeal from circuitcourt, Beadle county; Hon. Charles S. Whiting, Judge. Suit by the First National Bank of Huron against Clinton Crabtree, to have a chattel mortgage déclared a first lien on the exemptions set apart to the defendant in proceedings in bankruptcy, and the lien foreclosed. From an order granting a preliminary injunction, defendant appeals.

<p>1. Right to move the court for a new trial for errors in the report of the referee, properly excepted to, is not lost by the parties stipulating that the report be in all things accepted and adopted; the word “adopted,” as so used, having the same meaning as the word “accepted,” and the effect of the stipulation being merely to waive the right to question the authenticity of the report on the settlement of a bill of exceptions.</p> <p>2. The authority given a referee to “decide any question which arises on the trial, sign p, report or settle a case,” does not relieve the trial court .of the statutory duty to settle the bill of exceptions.</p> <p>3. Defect in a notice to take depositions, in not naming a person whose deposition was taken, is waived by the adverse party appearing and cross-examining the witness.</p> <p>4. Allowing an amendment of the complaint, changing its allegation that defendant, through its agent, entered into the contract, to one that defendant itself entered into it, being to conform the allegation to the testimony, is proper, no substantial prejudice being shown.</p> <p>5. Letters, one from plaintiif to defendant, reciting, “If you desire to sell these tracts, * * * give me your price, and 1 will see what can be done;” another, from defendant to plaintiff, “I am listing this property at $1,600. * * I shall be glad to favor you in any way I can, and if you can work kp a sale I shall be glad to allow you a commission;” another, from defendant to plaintiff, stating that the party making inquiry thought the price too high, and asking whether a lower price could be made, and what commission could be allowed; another, from defendant, stating, “I believe I should hate to see these lands go at $1,600 apiece not to me, but if you can find a buyer at that, and get your commission above it, we will try to put the deal through;” and another, from plaintiff, stating, “I have a customer for both tracts, who will take them at $1,600 a quarter section” — do not show a meeting of the minds, so as to make an enforceable contract.</p>

<p>The judgment dismissing'the complaint in an action by G. (against the administrator of M. for land, based on the claim that G. was the owner of the entire property, which was bought and title to which was (taken in the name of M. does not estop G. in an action against him by M.’s administrator for the recovery and use of the property from setting up the equitable defense that he was a joint.owner of the land with'M., the causes of action of G. in the two actions being different, and it not affirmatively appearing that there was a determination in the first action that G. had no interest in the land; a ground urged in the first action for the dismissal of the complaint, and which existed and warranted the dismissal, being a variance between the pleading and proof.</p>

E. G. Smith, Judge. Certiorari on the relation of J. W. Lindsay against O. L. Boyden and others. From the judgment, defendant A. Van Der Voort appeals. In determining whether a majority of the legal voters of the county had signed this petition, the board of county commissioners exercised judicial functions; it exercised quasi-judicial powers involving judgment and discretion.

• Appeal from circuit court, Charles Mix county; Hon. E. G-. Smith, Judge. Mandamus by tbe state on the relation of T. E. Andrews against O. L. Boyden and others. Prom a judgment directing the issuance of a peremptory writ, defendants appeal. ■

<p>Original mandamus proceedings on the relation of Robert M. Howells against H. A. Metcalf, county auditor of Roberts county.</p>

Levi McGee, Judge. Action by Charles E. Gibson against Ethan L. Allen. Prom a judgment for defendant, plaintiff appeals. Defendant makes application to have the record transmitted for amendment.

<p>1. Where railroad employes were directed to build a snow fence on property not owned by the railroad, and in compliance with a request of the owner one of her servants wentto the crew and remonstrated with them, forbade them to erect the fence there, and demanded the removal thereof, whereupon, at the instance of the foreman of the crew, commanding one of his men to “go after” the owner’s servant, he was set upon and beaten, the assault was not within the scope of the authority of the railroad company’s employe, and hence the railroad was not liable therefor.</p> <p>2. An allegation, in a complaint in an action against a railroad for an assault and battery committed on plaintiff by an employe of defendant, that the assault was made while defendant’s employe was acting within the scope of his authority, in the absence of allegation that the employe was expressly or impliedly authorized by the defendant to commit the assault, is a mere conclusion.</p>

<p>Under Comp. Law's 1887, § 5308, providing that the record of a recorded acknowledged instrument is admissible in evidence when by the party’s own oath or otherwise the original is shown not to belong to the party wishing to use it, and not within his control, plaintiff lays a sufficient foundation for introduction of the record of deeds in the chain of title to his grantor by testimony of plaintiff’s attorney that as his agent he purchased the property, and had entire charge of the transaction; and received the deed from the grantor, that neither he nor plaintiff received any of the other instruments in the chain of title, and that he never heard where any of them were.</p>

<p>1. Rev. Code Civ. Proc. 1903, c. 29, provides a system for quieting title to real property and determining adverse claims, aDd Laws 1903, p. 255, c. 194, authorizes the maintenance of an action for the same purpose against “unknown persons, heirs at law, devisees, legatees, creditors, executors and administrators of deceased persons,” section 3 (page 256) of which requires plaintiff to state in his complaint that the defendants are proper parties under the act, and that the action is brought to determine all adverse claims to such property and to quiet title in plaintiff. Held, that the act of 1903 provided a cumulative remedy to that authorized by chapter 29 of the Code, and hence a complaint under that chapter was not objectionable for failure to comply with section 3 of the act of 1903, none of the parties provided for in such section being parties to the action.</p> <p>2. The summons cannot be used for the purpose of interpreting the complaint on demurrer.</p>

<p>1. Where plaintiff purchased a tax certificate from, the county, and thereafter paid the taxes on the property described in the certificate, and there was error in the description thereof, the purchaser could not recover the amount paid from the county under Laws 1891, p. 66, c. 14, § 112, authorizing- a recovery of money paid for land sold by taxes, when by mistake or wrongful act of the treasurer, no taxes were due on the land.</p> <p>2. A -purchaser of land from a county, which the latter had acquired under a tax sale, was not entitled to recover the price paid from the county-on the ground that the tax certificate was void because of an alleged error in the description, tax sales being subject to the rule of caveat emptor.</p>

Joseph W. Jones, Judge. Action by J. R. George against Jozeph Kotan and. another. From an order overruling a motion to change the place of trial, defendants appeal.

<p>1. Where, in an action to quiet title, the undisputed evidence showed that plaintiff was in the actual possession of the premises, claiming to be the owner in fee by virtue of a certain deed and certain judicial proceedings, such possession and claim of ownership were sufficient evidence of title to justify a recovery as against a defendant who failed to establish any title in himself.</p> <p>2. Though plaintiff’s documentary evidence, consisting of certain deeds, etc., in a suit to quiet title, was insufficient to prove title deraigned from the United States or a common grantor, it was admissible to show the exact location of the premises occupied by plaintiff under a claim of ownership.</p>

Frank B. Smith,-Judge. Action by'the state, on the prosecution of G-unild Heljerson, against Knute Knutson for bastardy. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from circuit court, Gregory county; Hon. E. G. Smith, Judge.</p> <p>Action by C. A. Johnson against Fred Hillenbrand. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from circuit court, Lawrence county; Hon. Joseph B. Moore, Judge.</p> <p>Action by Matt Plunkett, as sheriff of Lawrence county, S. D., against Lawrence county. Prom á judgment in favor of plaintiff, defendant appeals.</p>

Dana E. Bailey, Judge. Action by Louise B. Dorsey against Fred W. Gunkle. Judgment for defendant. Plaintiff appeals. Where an acknowledgment' or new promise is made to a third person with the intention that it shall either be communicated to or shall influence the creditor, such an acknowledgment or new promise is just as effective to prevent the bar of the statute as if made directly to the creditor.

E. Gr. Smith, Judge. Action by the Manitoba Mortgage & Investment Company against Adam Weiss and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from circuit court, Brown county; Hon. J. H. McCoy, Judge.</p> <p>Action by the Meyer Land Company against A. Pecor. From a judgment for plaintiff, defendant appeals.</p>

Joseph B. Moore, Judge. Action by John Peterson and others against Ole Christianson and others to restrain defendants from interfering with plain-' tiffs’ use of church property. From a judgment and order denying a new trial on findings .for plaintiffs, defendants appeal.

<p>1. The Supreme Court cannot amend a bill of exceptions, or determine whether respondent was entitled to have the desired matter inserted therein.</p> <p>2. The existence in a plank sidewalk, 6 feet wide, of a hole 17 inches long, 7 inches wide, and 2i inches deep, where one of the planks had broken off at the ehd and been forced downward, at a place where the walk had been repaired 3 months before, and to which the attention of no witness had ever been called, though they had frequently been over the walk, is not enough to charge the city, which had no actual notice of the defect, with negligence.</p>

<p>Under Rev. Civ. Code 1903, § 1238, subd. 5, providing that an agreement for the leasing of real estate fora longer period than one year is invalid unless the same, or some note or memorandum thereof, be in writing, an oral lease of real estate for one year for a term beginning a day or two in the future is valid.</p>

Levi McGee, Judge. Action by George F. Whitney and others against Charles D. Hazzard and others. Demurrer to the complaint was overruled, and defendant Hazzard appeals.

<p>Appeal from circuit court, Fall River county; Hon. Levi McG-ee, judge.</p> <p>Action by Frank Turner against the Hot Springs National Bank, a corporation. From a judgment for defendant, plaintiff appeals.</p>

Levi McGee, Judge. Action in claim and delivery by Nellie H. Chapman against Daniel W. Greene and S. Josie Hill. Prom a judgment for defendant Hill, plaintiff appeals. .

<p>Appeal from circuit court, Pennington county; Hon. Levi McGee, Judge.</p> <p>Action by Prank M. Lockhart against Thomas Hewitt, as chief of police of the city of Rapid City. Prom a judgment for plaintiff, defendant appeals.</p>

A. W. Campbell, Judge. Action by W. G-. Mead against the town of Mellette. Prom a judgment for defendant, plaintiff appeals. Swales, ‘draws’ or mere ravines where the water runs or is found only at such times are not water courses. 28 Ency. of Law, p. 944; Joliet, etc., R. Co. v. Healy, 94 111. 416; Jeffers v. Jeffers, 107 N. Y. 651; Chicago, etc., R. Co. v. Monon, 42 Kan. 339; Hoyt v. Hudson, 27 Wis. 656; Gibbs v. Williams, 37 Am.

Joseph W. Jones, Judge. Action by Charles L. Phillips against John Norton and another to restrain the enforcement of a judgment. Prom an order overruling demurrers to the complaint, defendants appeal.

Levi McGee, Judge. Action by Charles D. Crouch and another as trustees, etc., against the Dakota, Wyoming & Missouri River Railroad Company and others, in which Frederick P. Read intervened. From a judgment in favor of plaintiffs, defendant corporation and defendants Muhlke and Coad appeal.

<p>Appeal from circuit court, Brown county; Hon. J. H. McCoy, Judge.</p> <p>Action by Frank C. Ball against Charles R. Dolan From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. There being sufficient competent evidence to sustain a finding in a case tried by the court without a jury, admission of incompetent evidence is not ground for reversal.</p> <p>2. Annual representation work on a mining claim done by a company, the superintendent of which has a contract with the locator of the claim for its purchase, inures to the benefit of such locator, though the superintendent is not shown to have assigned the contract to the company, as he will be considered to hold the contract in trust for the company.</p>

LoringE. Gaffy, Judge. Action by L. W. Moody against J. L. Lambert, as county treasurer of Potter county, and another. Prom a judgment dismissing the action for want of prosecution, plaintiff appeals.

<p>Appeal from Minnehaha county court; Hon. D. R. Bailey, Judge.</p> <p>Action by Jewett'Bros. & Jewett against M. R. Bentson. From a judgment for defendant, plaintiff appeals.</p>

. Appeal from circuit court, Brookings county; Hon. Julian Bennett, Judge. Petition by T. R. Qualey and others against the city of Brookings and Frederick E. Bates, praying that a portion of the territory of said city be excluded from its corporate limits. From a judgment for petitioners, defendants appeal.

<p>Appeal from circuit court, Union county; Hon. Joseph W. Jones, Judge.</p> <p>Action by Amelia Missouri Timber against Mary Desparois. Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from circuit court, Brown county; Hon. J. H. McCoy, Judge.</p> <p>Action by J. F. Kelley & Co. against Ellery O. Mead, Judgment for defendant and plaintiff appeals.</p>

W. G. Kice, Judge. Action by M. C. Clarke, as receiver of the American Savings & Loan Association, against Milton C. Conners, Jr., as executor of the last will of Milton C. Conners, deceased, and others. From a judgment in favor of defendants plaintiff appeals.

Levi McGee, Judge. Action by George W. Brady against Samuel Shirley and another. Judgment for defendants. Plaintiff appeals. The resemblance of a colt to its alleged sire and dam is too much a matter of fancy to be competent as evidence, and those decisions which regard the matter of resemblance as proper prooí, none hold that such resemblance can be shown by opinion evidence.

<p>1. Where defendant did not move to strike out specified portions of the complaint as irrelevant and redundant until after answer and the case had been called for the trial, the objection was waived.</p> <p>2. A complaint alleged that defendant, the owner of certain hay land, contracted that complainants should cut, press and haul the hay for a certain price; that under defendant’s directions and pursuant to such contract, plaintiffs cut and stacked a part of the hay and baled another portion thereof, but were prevented by defendant from baling and hauling all the hay required by the contract. Plaintiffs also alleged that they had expended a certain sum of money in the work, for which they claimed a lien on the hay not hauled, and alleged that defendant had wrongfully taken possession of the hay not paid for. and threatened to continue taking the same without paying plaintiffs’ claim. Held, that the complaint disclosed a joint enterprise or interest in the hay, warranting an accounting.</p> <p>3. The complaint also stated a cause of action warranting the appointment of a receiver pendente lite.</p> <p>4. Where a complaint is indefinite and uncertain, defendant’s remedy is by motion to make tne same more definite and certain, interposed before answer served, and not by an obj'ection at the trial that the complaint does not set out the contract specifically under which plaintiffs claimed their rights alleged.</p> <p>5. Under Rev, Code Proc. #311, providing that, where answer has been served, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue, the sufficiency of the complaint, when attacked at the trial by an objection to the introduction of any evidence thereunder, does not depend on the prayer for relief.</p> <p>6. Though plaintiffs’ complaint was inartistic, indefinite and uncertain, reversible error could not be predicated on the overruling of defendant’s objection thereto, first raised after the trial was begun by an objection to the introduction of any evidence thereunder, the case having heen heard on the merits, without apparent prejudice to defendant’s rights so far as the pleadings were concerned.</p> <p>7. Where plaintiffs contracted to cut, bale, and haul certain hay from defendant’s land, and they failed to bale and deliver a part of the hay as required by the contract, they were only entitled to recover the reasonable value of the work and labor performed, less the damages suffered by defendant on account of such failure.</p> <p>8. Where a contract provided for the payment of $200 as liquidated damages in case of a breach of the contract by either party, and plaintiffs, having failed to perform a part of the work required, sued for the reasonable value of the balance, it was not error for the court to allow defendant the amount fixed by the contract as liquidated damages to the exclusion of all othi r items of damage sustained by him, no question being raised regarding the validity of such liquidated damage clause.</p> <p>9. Where plaintiffs agreed to cut, stack, bale, and haul certain hay from defendant’s land, but, having failed to fully comply with the contract, sued for work and labor performed to defendant’s use, and there was no evidence showing the reasonable value of hauling part of the hay to a certain station, it was error for the court to allow plaintiffs the contract price therefor, they being entitled, under such circumstances only to the proved value of the work of cutting, stacking and baling the hay so hauled.</p> <p>30. Under the express provisions of Rev. Code Proc. § 146, a variance between the allegations of the complaint and the proof which does not actually mislead the defendant in making his defense on the merits'is immaterial.</p> <p>11. Rev. Civ. Code, § 2153, provides that every person who, while lawfully in possession of an article of personal property, renders any services to the owner thereof by labor and skill employed for the protection, improvement, or safe-keeping thereof, has a special lien thereon, dependent on possession, for the compensation, if any, due him from the owner for such services. Held that, where plaintiffs contracted to cut, stack, bale, and haul hay from defendant’s land, they were entitled to a special lien on the unhauled hay, dependent on possession, for their compensation, and, as between the parties, plaintiffs were in possession until the hay was voluntarily surrendered.</p> <p>12. Plaintiffs, being entitled to a lien on certain hay for their services in cutting, stacking and baling the same, within Rev. Civ. Code, § 2153, until such hay had been voluntarily surrendered, the appointment, of a receiver to preserve such lien in an action for work and labor performed under the contract was not error, though the appointment was not made until after defendant’s answer was served.</p> <p>13. Where plaintiffs were entitled to a • lien on certain hay, within Rev. Civ. Code, § 2153, for services rendered, dependent on possession of the hay, the fact that defendant was not insolvent did not deprive the court of authority to appoint a receiver to preserve such lien.</p>

A. W. Campbell, Judge. Action to quiet title by Mary A. Thomas against Nelson Wilcox and Noble Wilcox. From a judgment for plaintiff, Nelson Wilcox appeals. It is one of the essential elements in the description of real property in a conveyance that it mus,t be sufficiently certain to furnish the means of identification of the premises intended to be Conveyed, and if it is too vague and too uncertain for this purpose the instrument containing it is inoperative and void.

Joseph. W. Jones, Judge. ■•■■■ Action by Rena A. Vesey and another against tbe ' Commercial Union Assurance Company, Limited, of London. From a judgment in favor of plaintiffs, defendant appeals; The legislature itself in substancé and effect enacted a form of policy and that form of policy contained the cl ause requiring all actions to be commenced within one year after the fire. Quinlan v. Providence Ins. Co., 133 New York 356.