Volume 18 — Wyoming Reports

Charles E. Carpenter, Judge. The facts are stated in the opinion. An order denying a motion to strike a bill of exceptions from the files is a final order. ('62 O. St. 202; Baxter v. Coughlin, 80 Minn. 322; Rev. Stat. 1899, Sec. 4227.) A bill must be filed after allowance and is no part of the record until allowed and made such by proper order. (Sec. 3743.) The statute does not provide for depositing a bill with the clerk, but it must be presented to the court or the judge.

David H. Craig, Judge. The facts are stated in the opinion. argued and maintained that upon the undisputed evidence the Town Treasurer, plaintiff below, had never received the money set forth in his petition for the receiving and disbursing of which the commissions sued for were claimed; that the money was never in his actual custody nor deposited to his credit as treasurer in any bank; that he kept no account of the same; and that when his term of office expired his report…

Charles E. CarpENTER, Judge. Action for possession of mining ground brought by Ed-more LeClair against J. B. Hawley, Neal C. Hawley, Robert McGowan, O. J. Midthun, Harry P. Minor, and S. E. Mensinger. Before judgment A. M. Lawton was made a party defendant by order of court. Judgment for defendants. Plaintiff prosecuted proceeding in error. The facts are stated in the opinion.

Parmelee, Jú'dge. The action was brought by C. A. Cook against the Chicago, Burlington & Quincy Railway Company. From a verdict and judgment for the plaintiff, the defendant prosecuted error. The facts are stated in the opinion.

<p>Original proceedings in habeas corpus.</p> <p>The facts are stated in the opinion.</p>

Roderick N. MatsoN, Judge. John J. Mcllquham brought the suit against the Anthony Wilkinson Live Stock Company to secure certain ways of necessity over the defendant’s lands. From a judgment in favor of defendant, the plaintiff prosecuted error. The material facts are stated in the opinion.

Carroll H. Parmslee, Judge. The facts are stated in the opinion.' It is attempted by the defendant in error to attack collaterally the court proceedings relating to the land in controversy, in which proceedings a receiver was appointed and the land was first placed under his control and subsequently in the full, unqualified and absolute control of the divorced wife of the defendant’s intestate.

Carrorr H. Parmrrer, Judge. The action was ejectment brought by the Wyoming Coal Mining Company against Barton Tucker and Saloma Tucker. Verdict and judgment for the defendants. A new trial was granted on motion of the plaintiff, on the ground of newly discovered evidence, and from that order' the defendants prosecuted error. The facts are stated in the opinion.

Car-rom, H. Parmeuue, Judge. Action by Elvira Rampman against the Chicago, Burlington & Quincy Railroad Company and Chris. Rhinemuth. Verdict and judgment for the plaintiff, and the defendants prosecuted error. The facts are stated in the opinion.

Carroll H. Parmelee, Judge. The action was brought by Algernon S. Patrick against the Board of County Commissioners of Sheridan County, to enjoin the defendant from interfering with a fence built by the plaintiff across a traveled road.

ON reserved questions from the District Court, Natrona County, Hon. Charles E- Carpenter, Judge. The facts are stated in the opinion. The provisions of the Constitution are mandatory. (21 Am. St. 272; State ex rel.

ON RESERVED QUESTIONS from the District Court, Laramie County; Hon. RODERICK N. Matson, Judge. An information was filed in the District Court against Ethelyn Margaret Sherman, charging that on March 29, 1909, she did wilfully and unlawfully arrange for the receipt of interest at a rate greater than 25 per cent, per annum upon a loan of $25.

David-H. Craig, Judge. Heard on motion to dismiss. The facts are stated- in the opinion. A motion' for new trial was necessary in the lower court to obtain a review of the order denying the motion to dissolve the temporary injunction, as required by Rule 13 of this court.

Roderick N. Matson, Judge. The facts are stated in the opinion. By the statute requiring railway corporations to fence their track and keep such fence in repair, except within the boundaries of an incorporated city or town, the Legislature has made such exceptions to the requirement as it deemed proper. Station grounds outside of an incorporated city or town do not come within the exception. A place containing 150 people may be incorporated as a town.

Charles E. Carpenter, Judge. The facts are stated in the opinion. When error has been committed on the trial of. a cause, the trial court should, without hesitation, grant a new trial unless the error has been corrected in a clear and positive manner.

David H. Craig, Judge. The facts are stated in the opinion. The issue in an adverse suit is not which party can show the better title, but which, if either, can show right of possession, and to patent, as against the title of the government.

David Ii. Craig, Judge. Action in replevin. Judgment was for defendants, and plaintiffs prosecuted error. The facts are stated in the opinion. The plaintiffs below, plaintiffs in error here, claim laborers’ liens under Sections 2857, 2858 and 2859, Revised Statutes of 1899. . The plaintiffs claimed and here claim the right to seize and sell the property in controversy, and to have possession thereof, for the purpose of foreclosing their several concurrent liens.

Carroll H. Parmbluu, Judge. Leonard B. Nicholson was tried upon an information charging murder in the first degree, and convicted of manslaughter. His motion for new trial was overruled, and he prosecuted error. The material facts are stated in the opinion.

On reserved constitutional questions from -the District Court, Big Horn County, Hon. Carroll H. Parmelee, Judge. Held: and unless the Legislature has provided the necessary machinery for holding it. (10 Ency. Law, 563.) By the statute under which it is claimed the vote on the question of division was-táken, such vote is only provided for in the case of a county already created and formed, and’ as a part of the process of its organization.

Exceptions by prosecuting attorney in a criminal case from the District Court, Albany County, Hon. David H. CRAig, Judge. The facts are stated in the opinion. The grounds of the objection to the questions propounded to one of the witnesses, a physician, not being stated, the reasons for sustaining the objections do not appear. The witness had qualified and was therefore competent, and the evidence was material under the allegations of the information.

Carroll H. Parmelee, Judge. The facts are stated in the opinion.

ON reserved questions from the District Court, Laramie 'County; HoN. Roderick N. Matson, Judge. The material facts are stated in the opinion.

Charles E. Carpenter, Judge. - Whenever ditches or other structures for diverting water belong to two or more proprietors, such owners are, in the absence of special agreement to the contrary, tenants in common of the ditch and- their proprietary rights are governed by the rules of law governing tenancies in common.

David H. Craig, Judge. The material facts are stated in the opinion. Although the statute implies that an injunction may be granted without notice, we submit that the practice of the District Court in granting an injunction or any other extraordinary remedy on an ex parte hearing should be discouraged.

Charles E. Carpenter, Judge. The material facts are stated in the opinion. Error was prosecuted from a judgment of a Justice of the Peace to the District Court by the plaintiff in error, and it was claimed: (i) That the justice had no jurisdiction over plaintiff in error for the following reasons : (a).There was no pleading filed with the justice as contemplated by law.

Reserved questions from the .District Court, Albany ■County; Hon. Charles E. Carpenter, Judge. Heard on motion to remand. It appears from the original papers that questions involving the sufficiency of the information are yet pending and undecided in the court below, so that, as decided in State v. Kelley, 17 Wyo. 335, the constitutional questions reserved ■cannot be considered, and the case ought therefore to be remanded.

David H. Craig, Judge. The material facts are stated in the opinion. The information is insufficient for the reason that it does not allege in definite and certain language, the materiality of the false testimony. The alleged false testimony could not ordinarily be in any way material to an issue arising out of a plea of not guilty to a charge of rape.

David H. Craig, Judge. The material facts are stated in the opinion. Testimony given, either under oath or otherwise, at the coroner’s inquest by persons under arrest or suspected of crime is not admissible upon their subsequent trial for the crime then under investigation. Such testimony cannot be regarded as voluntary. (Tuttle v. People, 33 Colo. 243, 79 Pac. 1035, 70 R. R. A. 33; Twiggs v. State, (Tex. Cr.

RODERICK N. Matson, Judge. The material facts are stated in the opinion. The provision in the city charter (Comp. Stat., Sec. 1383) that on appeal from the Police Justice the case shall stand for trial in the District Court upon the transcript and there shall be no trial de novo is unconstitutional, and -we contend that such a case can be tried in the District Court only by a common law jury.

Roderick N. Matson, Judge. The material facts are stated in the opinion. (An abstract of the brief upon the right of the plaintiff in error to a jury trial in the District Court upon her appeal from the police justice will be found in the abstract of briefs in the report of the case between the same parties, No. 625.