Volume 19 — South Dakota Reports

Charles S. Whiting, Judge. Prohibition by .the state,, oh The relation of-'P. R. Crothers and another, against L. W. Barber and others, trustees of the town of Hetland, in Kingsbury county. , From a judgment awarding, thq writ, defendants.appqal.

Appeal .from circuit court, Minnehaha county; Hon. Joseph W: Jones, Judge. ' Action by Mary Garrigan against Samuel Kennedy and others. Judgment for plaintiff.' Defendants appeal.

J. H. McCoy, Judge. Suit by Prank A. Morris against Andrew Reigel. Prom a judgment for plaintiff, defendant appeals. Where the person claiming the beneficial interest in land purchased in another’s name has not actually paid any part of the purchase money it is not competent to raise 'a trust in his favor by showing, by parol, that the purchase was made by agreement for his benefit.

. Appeal from circuit court, Clark county; Hou Julian Bennett, Judge. Action by Charles Harmon against John Goggins and another. From a judgment-in favor of defendants plaintiff appeals.

<p>Where one whose true name was “Jacob Zurich” took title to real estate as “Jacob Zujic,” in which name it was recorded, and thereafter mortgaged it successively first under the name “Jack Zujic,:” which was recorded as “Jack Zurch”; second, as “Jack Zulich,” his wife joining as “Mary Zulich”; and, third, as Jacob Zurich, his wife joining as “Pere Zurich” — the third mortgagee was not entitled to claim priority over either of the other mortgagees, since, had he examined the record, ‘he would have found that his mortgagor, as far as the record-showed, had no title to the property.</p>

Joseph W. Jones, Judge. Action by J. Mervyn Erickson against • Thomas H. Conniff and others. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.

<p>1. Where an order granting a new trial did not specify the grounds on which it was based, it will be affirmed on appeal, if any • ground on which the motion was made was sufficient to sustain the order.</p> <p>2. Where the weight of the evidence or the credibility of the witnesses is involved, or where the evidence on a material issue is so conflicting that different minds might reasonably draw different conclusions or inferences therefrom, it is error for the court to direct a verdict.</p> <p>3. Where, in an action against a sheriff to recover personal property levied on as the property of plaintiff’s tenant, the evidence as to whether the ' property was owned by plaintiff or the tenant was conflicting, and there was also evidence justifying an inference that plaintiff's agent,with plaintiff’s authority, had sold the property to the tenant, the giving of an instruction that for the purposes of the trial the property levied on belonged to plaintiff, and that there was no evidence to show that plaintiff’s agent had authority to or did make any sale of the property, etc., justified the granting of a new trial.</p> <p>4. An error shown will.be presumed prejudicial, unless the appellate court can clearly see that the appellant was not prejudiced thereby.</p>

<p>1. The fact that a person’s name was not mentioned in a publication alleged to be a libel on him does not render it the less libelous, so long as the publication would be understood to refer to him.'</p> <p>2. In an action for libel, the question whether the publication referred to plaintiff, whose name was not mentioned in it, is for the jury.</p> <p>3. It is not necessary, in order to render a publication libelous,, that it should charge any crime or public offense, inasmuch as Civ. Code, § 29, defines “libel” as a false and unprivileg'ed publication, by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which . causes him to be shunned or avoided, or which has a tendency to injure him in bis occupation.</p> <p>4. A publication alleged that a piano had been sold to a certain miners’ union, which required great financiering, and that the agent thought it a great thing to bribe a committee or officers so as to sell' a piano, and that such was the case Held, in an action for libel by the president and one of the trustees of the miners’ union, that the publication imported that plaintiffs and others were bribed to purchase the particular piano, and was an actionable libel, without any showing of special damages.</p>

Davison county; Hon. Frank B. Smith, Judge. Suit by the Phenix Insurance Company of Brooklyn, N. Y., and others against John C. Perkins, Commissioner of Insurance, From an order refusing a temporary injunction, plaintiffs appeal.

<p>Error to circuit court, Lyman county; TTon. Prank B. Smith, Judge.</p> <p>James M. Pearse was convicted of grand larceny, and he brings error.</p>

<p>Appeal from circuit court, Minnehaha county; Hon. Frank B. Smith, Judge. ■</p> <p>Action by J W. Mears against E. L. Smith and another. From a judgment for defendant Smith, plaintiff appeals.</p>

<p>Appeal from circuit court, Hand county; Hon. Loiiing'E.-Gappy, Judge. • .</p> <p>Action by Charles Battelle against John W. Wolven. ■ From a judgment dismissing the action, plaintiff appeals.</p>

<p>Where, on appeal, it was alleged that the com t erred in finding that a settlement had been consummated prior to the delivery of a note sued on, but the particulars wherein the evidence was deemed insufficient to sustain such finding were not pointed out, it will be presumed that the decision was justified.</p>

<p>Appeal from' circuit court, Kingsbury county; Horn. Julian Bennett, Judge.</p> <p>Action by D. A Thompson and wife-- against. Rufus 1». Hardy and wife. From' a judgment for plaintiffs, defendants appeal.</p>

<p>Conflicting -testimony 'will be examined only to determine whether there .is probative evidence sufficient to sustain the verdict...</p>

Goring E.' Gappy, Judge. Action by the Germantown Trust Company, a corporation, against Ben W. Whitney. From an order denying a motion to dissolve, and vacate an attachment, defendant appeals.

<p>1. In an action on a 'fire policy, a question put to insurer’s secretary as ' to whether "he bad “settled” the amount of the loss with insured was ■ ,' objectionable as calling for a conclusion.</p> <p>2. Laws 1897, p. 199, c. 70, §7, authorizing the organization of mutual fire insurance companies, provides that the secretary thereof shall adjust the amount of a loss, and, if a satisfactory settlement cannot be made, Shall appoint a committee to do so, and, if the parties cannot agree, arbitration shall be had. Held, that where, in an action on a policy, there was no evidence that any attempt had been made by the secretary to settle the amount of the loss, or any arbitrators appointed, evi- ' dence as to the appointment of a committee was immaterial, and prop- . ' erly stricken, • ■</p> <p>3. Laws 1897, p. 199, c. 70, § 7, authorizing the organization of mutual' fire insurance companies provides that the secretary thereof shall adjust the amount of a loss, and, if a satisfactory settlement cannot be made, shall appoint a committee to do so, and, if the parties cannot agree, arbitration shall bo had by.a board of arbitrators. Held, that whore, after notice of a loss, the company failed to take any of the steps provided by the statute for adjustment of the loss, it amounted to a waiver of the conditions.</p> <p>4. Where the insurer made no objection to the payment of a fire loss on the ground that the insured had failed to furnish a certificate of a justice of the peace as required by the policy, failure to furnish such certificate was no bar to an action on the policy.</p>

Joseph W. Jones, Judge. Action by G. R. Peterson and another, co-partners as Peterson Bros , against the Chicago, Milwaukee & St. Paul Railway Company. Prom a judgment for plaintiffs and from an. order denying a new trial, defendant appeals.

<p>While the provisions of the Code conferring upon trial courts power to vacate and set aside default judgments, and allowing parties to defend upon the merits, where, by mistake, inadvertence,' surprise, or excusable neglect, they have omitted to file tlieir pleadings within time, should be . liberally construed, yet much must be left to the sound descretion of the trial court, and that discretion, when exercised, will not ordinarily be reviewed by an appellate court unless abused.</p>

<p>Appeal from circuit court, Jerauld county; Hon. Frank B. Smith, Judge.</p> <p>Action by W. A. Fowler against H. P. Will and others. From the judgment, plaintiff and defendant H. P. Will appeal.</p>

<p>1; In an action for personal injuries, evidence of statements made by plain- ■ tiff after the injur#, concerning the nature thereof and the resulting-pain, and not constituting mere exclamations indicative of existing pain, is not competent.</p> <p>2. In an action for injuries caused by falling over lumber in a street, evidence that a servant of defendant said, after the accident, that the lumber belonged to defendant, was not admissible, in the absence' of any evidence that the servant had authority to bind the defendant by his declarations.</p> <p>3. In an action for personal injuries, evidence as to the amount of the bills of plaintiff’s physicians was inadmissible in the absence of evidence as to the value of their services or that the bills had been paid.</p> <p>4. In an action for personal injuries plaintiff’s attending' physicians, who are familiar with plaintiff’s condition s nd the nature of the injury, may testify as to how long the injury will affect plaintiff.</p>

Levi McGee, Judge. Action by Elmer R. Juckett, as trustee, against the Fargo Mercantile Company and others, action by the same plaintiff against the county of Fall River and others, and action by Hattie M. Fargo against Elmer R. Juckett, as trustee, and others. The actions were consolidated,- and from a judgment quieting title to certain land in Elmer R. Juckett, trustee, and from an order overruling a motion for .a new trial, certain defendants appeal.

<p>Appeal from circuit court, Lawrence county; Hon. W. G. Kick, Judge.</p> <p>Action by Joseph Whitford against Seth R. Smith. From a judgment for plaintiff, defendant appeals.</p>

W. G. Rice, Judge. Action by M, C. Clarke, as receiver of the American Savings & Loan Association, against Charles I. Zoellner and others. Prom a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from circuit- court, Lawrence county; Hon. W. G. Rice, Judge.</p> <p>Action by Thomas B. Nichols against Seth R. Smith. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Potter county; Hon. Loring E. Gaffy, Judge.</p> <p>Action by L. W. Moody against J. L. Lambert, as county treasurer of Potter county, and another. From a judgment . for defendants, plaintiff appeals.</p>

<p>Action by Joseph W. Whitford against Seth R. Smith.</p> <p>Appeal from taxation of costs.</p>

<p>Where an appeal is by agreement submitted upon the brief in another action, and no argument, oral or printed, is in fact made, no costs can be taxed for argument.</p>

<p>Appeal from circuit, court, Lawrence county; Hon, William G. Rice, Judge.</p> <p>Action by George R. Pearsons against Thomas E. Peters and another. From an order dissolving an attachment, plaintiff appeals.</p>

,J. H. McCoy, Judge. Action by Anna Dwight Tyler, as executrix of the will of R. S. Tyler, deceased, and others, against John E. Haggart. Prom an order granting a new trial, defendant appeals. An order for a new trial granted by the successor of the judge who tried the case does not carry the usual presumption under which such an order will only be reversed in case an , abuse of discretion appears.

Julian Bennett, Judge. Action by Charles A. Christopherson, as trustee iu bankruptcy of the estate of Julius T. Christenson, bankrupt, against H. I. Oleson. From a judgment in favor of defendant, and from an order denying plaintiff’s motion for judgment, plaintiff appeals.

Charles S. Whiting, Judge. Action by GeorgeKerr, as sheriff of Beadle county, against John Murphy and others. Judgment fo.r plaintiff. ¡Defendants appeal. Where there is some notice, although defective, the ¡judgment is not void; if there is personal notice, although irregular and defective, there is jurisdiction and the judgment is not void.

<p>Appeal from circuit court, Grant county; Hon. J, H. McCoy, Judge.</p> <p>Action by George W, Murphy against Neis Nelson and Lisa L. Nelson. From a judgment' for defendants, plaintiff appeals.</p>

Joseph W. Jones, Judge. Action by John Hickson against Archie Culbert and others. From a judgment in favor of plaintiff, defendants appeal.

<p>Original application of Olof Nelson for a writ of habeas corpus.</p>

J. H. McCoy, Judge. Suit by C. F. Easton against Emma A. Cranmer. From a judgment in favor of defendant, granting insufficient relief, she appeals. The tax deed on its face recites a sale of the real estate at public auction. This renders the deed void. Reckitt v. Knight, 92 N. W. 1077; Thompson v. Roberts, 92 N. W. 1079. A void tax deed can have no evidential force whatever, and defendant’s motion to strike it out should have been granted. O’Neill v. Tyler, 53 N. W. 434.

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Suit by C. O. Bailey against the city of Sioux Falls. From an order denying a temporary injunction, plaintiff appeals .</p>

<p>Error to circuit court, Beadle county; Hon. Charles S. Whiting, Judge.</p> <p>M. P. Yegge was convicted of practicing medicine without a license, and he brings error.</p>

<p>That the president of a bank is the treasurer and a director and stockholder, and the cashier is a stockholder and the secretary, of a corporation which transfers a note to the bank, according to a daily custom existing between the corporation and the bank, which latter discounts the same without inquiry, and places its proceeds to the credit of the- former, against which there is a large overdraft, is ground for the submission to the jury of the question of the bank’s character as a bona fide purchaser of the note, where the only evidence of its good faith in the transaction is given by the president and cashier of the bank, although such .evidence is uncontroverted.</p>

<p>Where the grantee of land returned his deed to the grantors before record, and demanded a rescission of the contract, which was refused, and in a suit for damages for the deceit the grantors disclaimed any interest in the land, they were estopped, in a suit thereafter brought by the grantee to quiet his title and for a return of the deed, from asserting any interest or estate in the premises.</p>

<p>1. Where, in an action on a written contract, plaintiff on Ms direct examination merely identified defendant’s signature to the contract, and on redirect examination testified to a part of the provisions of a subsequent oral agreement pleaded in defense, it was not prejudicial error to permit the opposing counsel to examine him fully with reference to the oral agreement.</p> <p>2. Where a shipment of nursery stock was accepted by the buyer on the express understanding that he was not to pay therefor unless the stock would prove to be as hardy as other varieties then growing on his premises, an action for breach of contract instituted within 10 days after the delivery of the stock was prematurely brought; it being impossible at that time to determine the rights of the parties.</p>

E. G. Smith, Judge. Action by the Iowa Loan & Trust Company against Augustus E. Schnose and others. Prom a judgment for defendants, plaintiff appeals. All agreements between the original mortgagor and his grantee, or any person who afterward acquired title, cannot affect the original payee of the note, unless he directly agrees, or by somd act, by which the law imputes to him an agreement releases the principal debtor.

<p>Under-Rev. Pen. Code, § 791, declaring the punishment .for .persons who attempt to commit a crime, and in such attempt do any act toward the commission thereof, but. who fail or are prevented or intercepted in its . perpetration, one who threatened to kill another and went to get a razor, but was induced to abandon his design before procuring the same, could not be held guilty of an assualt with a dangerous weapon with intent to do bodily harm.</p>

<p>1. Justice Code, § 10, provides that an action in a justice’s court is commenced by summons or by voluntary appearance ' and pleading- of the parties. A summons in an action in a justice court recited that defendant was summoned to answer plaintiff, who claimed to recover possession of oats of the value of $75 detained after demand; and there was a notice that, on default, plain'tiif would take judgment for possession of the property or the value thereof. The oral complaint of plaintiff was for oats of the value of $75 loaned defendant, which he had promised to pay. Judgment was demanded for the oats, or $75, and defendant set up a general denial and payment. Held that, on appeal and trial de novo in the county court, the latter was justified in trying the case on the theory that plaintiff’s claim was for the value of the oats.</p> <p>2. Where a judgment of a justice for the return of certain property, or its value, was irregular, in that the complaint was insufficient as one for the recovery of property, no advantage having been taken of the irregularity by motion to vacate or set it aside in the justice court, no advantage could be taken of the same on a trial de novo on appeal in the county court.</p>

E. G. Smith, Judge. Mandamus by John McCormick to compel Gust Pfeiffer and others, mayor and council of the city of Parker, to authorize respondent to engage m selling liquors, unless it should appear after due consideration that he was unfit so to do. Prom a judgment granting a peremptory writ, defendants appeal.

Joseph W. Jones, Judge. Action by the state and John L. Lockhart, as. trustee for the state, against Eugene W. Coughran and another. From a judgment for plaintiffs, defendant Coughran appeals.

Jambs H. McCoy, Judge. Action by Fred Larson as president, and others as trustees, of the incorporated town of Summit, and the town of Summit, against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiffs, defendant appeals. There must be a plain and positive intention to dedicate to public use; that this plain and positive intention is an essential element of dedication. Miles v. City of Los Angeles, 58 Pac. 190; DeGrillman v. Frawley, 1 So.

Joseph W. Jones, Judge. Action by Emma Sundling against W. E. Willey, implead-ed with another. From a judgment for plaintiff, defendant appeals. Personal notice of the application for the bankrupt’s discharge is not essential to the binding force of the discharge. Hanover National Bank v. Moyses, 186 U. S. 181; Bray v. Cobb, 100 Fed. 270; Flder v. Mannheim, 81 N. W. 2. The promise by which a discharged debt is revived must be clear, distinct and unequivocal.

Original'action by the C. & J. Michel Brewing Company against the state and another. Where money is paid and received under a mistake of law, relief can be had in the courts of this state. State v. Zophy, 14 S. D. 119; Bruner v. Stanton, 43 S. W. 411; Bruner v. Clay City, 38 S. W. 1062; Fecheimer v. Louisville, 2 S. W. 65; Louisville v. Anderson, 79 Ky. 344.

<p>The mere fact that a payment of a license fee to the state as a nonresident dealer in liquors, under Laws 1897, c. 72, p. 203, thereafter held unconstitutional, is unwillingly made under protest, with notice that an action will be brought for its recovery back, does not render the payment compulsory, within the rule permitting the recovery of compulsory payments.</p>

Joseph W. Jones, Judge. Action by George P. Watt against Joseph Morrow and others. Judgment for plaintiff, and defendants appeal. Where one purchases land with his own money and the legal title is taken in the. name of bis wife or child, the law raises a presumption that it was intended'as an advancement.

Frank B, Smith, Judge. Action by James W. Sanford, mayor of the city of Chamberlain, as trustee for M. McAndrews and others, against Henry J. King and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal.'

W. G. Rice, Judge. Mandamus proceedings by Eli P. Farnham and another against Nathan Colman, as justice of the peace within and for Lawrence county. Prom an order quashing the alternative. writ, plaintiffs appeal.

Appeal irom circuit court, Miner county; Hon. Frank B. Smith, Judge. Action by Henning Langmaack against J. H. Keith and others. From a judgment for plaintiff, certain defendants appeal.

<p>1. On appeal on the judgment roll the question as to whether it presents reversible error is to be considered on the merits, and not on a motion to dismiss.</p> <p>2. .Failure of appellant to print his abstract and brief while a motion to dismiss is pending does not show that the appeal was taken merely for delay, or that appellant- has failed to prosecute it with reasonable diligence.</p> <p>3. Where an appeal is dismissed because of appellant’s failure to prosecute with due diligence, no second appeal from the same order or judgment should be allowed, unless the order of dismissal expressly reserves the right.</p> <p>4. On appeal from a judgment alone, the fact that a former appeal in .the same action was dismissed for failure to prosecute with due diligence does not require dismissal of the second appeal, where it does not appear from wliat the former appeal was taken.</p>

<p>1. An order sustaining a demurrer and granting leave to file an amended complaint was not a final judgment, and the plaintiff could dismiss his action, notwithstanding the order, at any time before final judgment was entered, where no counterclaim had been interposed, or any special injury shown as resulting therefrom to the defendant.</p> <p>2. Whether an action shall be dismissed with or without prejudice rests in the discretion of the trial court.</p>

Levi McGee, Judge. Action by the Bishop & Babcock Company against A. Schleuning and others. Prom a judgment for defendants, plaintiff appeals, On motion to purge the record.

<p>Appeal from circuit court, Hanson county, Hon.•Prank B. Smith, Judge.</p> <p>Action by A. G. Hahn against Isaiah Dickinson and another. Prom a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Paulk county; Hon. Julian Bennett, Judge..</p> <p>Suit by Edwin'C. Clifford against D. H. Latham. Prom an order granting defendant a new trial, plaintiff appeals.</p>

<p>When an appeal is from a judgment and an order overruling a motion for a new trial, reversing the judgment and granting a new trial neither eliminates nor restricts any of the issues to be tried, but opens the whole case. ■</p>

Jones, Judge. Action by John M. Hurley against G. L. McCallister and. others. Prom a judgment for defendant McCallister, plaintiff appeals. Where a grant is made upon condition subsequent, and is subsequently defeated by the non-performance of the condition, the person otherwise entitled to hold under the grant must re-convey the property to the grantor or his successors, by grant duly acknowledged for record. Rev. Code Sub.

Joseph W Jones, Judge. Action by John 0. Unzelmann against Martha A. Shelton. Prom a judgment for defendant, plaintiff appeals. When the boundaries are fixed and known and unquestioned monuments exist, and neither courses, distances, nor computed contents correspond with the monuments, the monu: ments govern. Pernam v. Wead, 6 Mass. 131; Nelson v. Hall, 1 McLean 518; Yocum v. Haskins, 46 N. W. 1065.

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Action by Joe Kirby against J. B. Martindale. Prom an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

Joseph W. Jones, Judge. Action by Florence Merager against Bertha K. Madson and others. From a judgment dismissing the complaint on its merits and denying a motion for a new trial, plaintiff appeals.

Levi McGee, Judge. Action by Anna S. Goodale against Minnie E. Wallace, Arthur E. Wallace, and others. Prom a judgment in favor of plaintiff, defendants Wallace appeal. The test of usury is whether the contract, if performed, will result in securing to the lender a greater rate of interest than is allowed by law.

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Action by the Bankers’ National Bank against the Security Trust Company. From an order denying a motion to make Marcus P. Beebe a party, defendant appeals.</p>

<p>Under the provision of the Constitution that the right of trial by jury shall remain inviolate, and shall extend to all cases at law, and Rev. Code Civ. Proc. § 275, providing that in an action for the recovery of specific real or personal property trial by jury may he waived only with the assent of the court to the written consent of the parties filed with the clerk, or an oral stipulation made in open court and recorded in the minutes of the trial, the right to a trial by jury is not waived by'de- . fendant in an action at law for the recovery of personal property by moving for a directed verdict at the conclusion of plaintiff's evidence, where, after the denial of the motion, he. introduces evidence sufficient to carry his case to the jury.</p>

<p>Notwithstanding- Rev. Code Civ. Proc. § 322, requiring the judgment docket to state the sum recovered or directed to he paid in figures, an entry adjudging that title to certain land he quieted, and that the plaintiffs in the action recover their costs from defendants, “taxed at • $-,” the entry is sufficient to constitute tho costs a lien on their property, though there was no judgment for money other than costs; and hence a purchaser of land from one of the defendants with knowledge of the judgment and entry takes it subject to the lien for the amount of the costs subsequently inserted.</p>

Appeal by Anna M. Kothe from a judgment affirming the proceedings of the board of supervisors of Berlin township, Clark county, in laying out a highway over the land of appellant.

<p>Appeal from circuit court, Minnehaha county; Hon. Joseph W. Jones, Judge.</p> <p>Action by G. E. Rochford against School District No. 6, Lyman county, and others. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Codington county; Hon. Julian Bennett, Judge.</p> <p>Action by Otto Waege against John Koehler. Judgment for defendant. Prom an order granting a new trial, defendant appeals.</p>

<p>Appeal from circuit court, Spink county; Hon. J. H. McCoy, Judge.</p> <p>Action by Andrew S. Work and another against M-'afy. Braun and others. Prom a judgment in favor of defendants, plaintiffs appeal.</p>

<p>Pen. Code, § 542, defines arson as the burning of a building; and section 543 defines a building as “any house, edifice, structure, vessel or other erection, capable of affording shelter for human beings, or appurtenant thereto, or connected with an erection so adapted.” Section 720 makes it an offense to burn stacks of hay, ‘grain, fences, etc. Held, that an ordinary box ear, in use as a freight car, is a building, within section 542.</p> <p>Puller, J., dissenting.</p>

<p>1. Findings of a trial court on disputed questions of fact will be presumed correct on appeal unless there is a clear preponderance of the evidence against them.</p> <p>2. Where plaintiffs claimed certain mining claims under an alleged relocation of defendant’s claims, they thereby admitted the validity of defendant’s former location, and were estopped to deny the validity of the original location.</p> <p>3. Reversible error cannot be predicated on the rejection of offers to prove facts which were established by other uncontradicted evidence.</p>

<p>1. Where plaintiffs horse was struck by defendant’s train on defendant’s right of way, it was a trespasser, and defendant was only bound to use reasonable care to avoid injury to it after discovering it in close proximity to the track.</p> <p>2. Where, in an action against a railroad company for striking plaintiff’s horse, defendant’s engineer testified that he could have stopped the train within 300 feet, and that when he saw the horse he did not have time to stop before striking him, plaintiff was entitled to introduce evidence in rebuttal that a horse standing 25 feet either way from the track at the point where the horse in question was struck could be plainly seen for a distance of 1,500 feet in the direction from which the train approached.</p> <p>3. Where, in an action against a railroad company for striking plaintiff’s horse, the engineer testified that he was keeping a lookout, and could have stopped his train within 300 feet, but did not see the horse in time to stop before striking him, and plaintiff’s evidence showed that the animal was in the engineer’s line of vision while the train was mov- ' ing more than 1,500 feet, it was not error for the court to overrule defendant’s motion for a directed verdict, the jury being’entitled to find that defendant could have avoided the accident, notwithstanding his positive statement to the contrary.</p> <p>4. Where, in an action against a railroad company for striking plaintiff’s horse, defendant introduced evidence as to the speed of the train, it was not error for the court to receive further competent evidence offered by plaintiff on such issue.</p> <p>5. Whether a witness was competent to testify as to the speed of a certain train was for the determination, of the trial court, whose ruling would not he reversed in the absence of palpable error.</p> <p>6. On an issue as to the violation of a speed ordinance by defendant’s train at the time it struck plaintiff’s horse, an instruction that defendant’s act in violating such ordinance was proper for the consideration of the jury in determining whether defendant was negligent in fact was not error.</p> <p>7. Where, in an action against a railroad company for striking plaintiff’s horse, the complaint charged that defendant, by its agents and servants not regarding its duty in that respect, so carelessly and negligently ran and managed one of its locomotives that the train attached to the same ran against and over plaintiff’s horse, etc., it was sufficient to justify the introduction of municipal speed ordinances regulating the speed of trains and providing for the giving of signals within the limits of the city where the horse was struck.</p> <p>8. Where no instructions were requested and no exceptions were taken to the instructions given, it will be presumed on appeal that all material issues of fact were properly submitted to the jury.</p> <p>9. Where, in an action against a railroad company for striking plaintiff’s horse, defendant did not contend that plaintiff was guilty of contributory negligence as a ground for its motion for a directed verdict, it could not raise such objection on appeal.</p> <p>10. Where, in an action against a railroad company for injuring plaintiff’s horse so that it had to be killed, there was competent evidence that the horse was worth ¥200, and the only evidence to the contrary was plaintiff’s verified claim, in which the value was placed at $100, which plaintiff explained by saying that he thought if he placed the value at such amount he might get something without suit, the verdict in plaintiff’s favor for $2Q0 was not excessive.</p>

<p>1, The letters and figures “S. 2, N. E. 4, and S. E. 4 N. W. 4 Sec. 29, township 318, range 54,” contained in an assessor’s book or list, were mean* ingless, and did not- constitute a description of land sought to be assessed.</p> <p>2. Where a description in an assessor’s book or list of lands sought to be assessed constituted a mere meaningless array of letters and figures, the assessment was insufficient to confer jurisdiction to sell the land for nonpayment of taxes, and hence three years’ record of a deed executed to the purchaser without objection was insufficient to preclude (he former owner of the land from objecting to the validity of such deed under Rev. Pol. Code, §2214, providing that no action shall be commenced by the former owner of land to recover possession of land which had been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, unless commenced within three years after the record of the deed, etc.</p> <p>PULLER, J., dissenting.</p>

Levi McGee, Judge. Action by the Union National Bank of Omaha against James Halley and another. Prom an order sustaining; a demurrer to the complaint, plaintiff appeals.

<p>1. Where plaintiff, in an action for commission for the sale oflandfor defendant, alleged that the contract sued on was made with defendant’s agent, whose authority to contract with plaintiff defendant denied, the contract between defendant and his agent, which defendant testified was the only contract he had made regarding the sale of the land, was admissible.</p> <p>2. By an option contract for the sale of land at a specified sum, providing that the vendor should pay the vendee a certain amount as liquidated damag'es if he should refuse to accept the price and execute a deed as he had therein contracted to do, the vendor conferred no authority on the vendee to bind the vendor to pay any commission to a third person on account of the sale.</p> <p>3. In an action for commission for a sale of land under a contract alleged to have been made with defendant’s agent, where there was evidence tending to show that a contract was entered into between the agent and defendant for the exchange of land by which defendant agreed to pay the agent a certain commission, and defendant testified that be had settled with the agent and gave him a note for the amount before he had any knowledge that plaintiff was in any manner connected with the transaction, plaintiff could not on cross-examination require the defendant to answer as to whether the note had been paid.</p> <p>4. Instructions requested are properly refused when not based on evidence,</p> <p>5. A pi’incipal is not liable on a contract of his aeent, executed in the name of the principal, where the agent was not authorized by the principal to enter into the contract.</p> <p>6. A ratification of the contract of an agent by a principal is not binding on the principal where it is not made with a full knowledge of all the 'facts connected with the transaction.</p> <p>L In an action against a principal to recover on an alleged contract made with his agent, where there was no evidence tending to prove that the alleged agent had authority to enter into the contract, it was proper for the court to assume in its charge that the agent had no authority to bind the defendant.</p> <p>8. On conflicting evidence, the question whether a principal ratified the contract of his agent is a question for the jury.</p> <p>9. The verdict of the jury on conflicting evidence is conclusive on appeal.</p>

<p>Appeal from circuit court, Fall River county; Hon Levi McGee. Judge.</p> <p>Action by Amos N. McLennon against William A. Fenner and another. From a judgment for ' plaintiff, the American Bonding & Trust Company, defendant, appeals.</p>

Appeal'from circuit court, Roberts county; Hon. J. H Me, Coy, Judge. • Action by Edward Gardiner against James Ross and another, and by the same plaintiff against James Ross. Plaintiff recovered judgment in both cases, and in supplementary proceedings an order was made requiring defendant to pay the judgments, and later defendant was adjudged guilty of contempt in failing to comply with this order.

Levi McGee, Judge. Action by Irene Pringle against Charles Canfield, as sheriff of Pennington county, S. D. Prom a judgment for defendant, plaintiff appeals. Session Laws of 1903, Chapter 199, pages 263 and 267. In the last eleven lines is enumerated the Acts and Laws of the Session Laws of 1903, that is repealeJ, Chapter 36 being among them. That chapter contains two sections, the first section being as follows: Section 1.

W. G. Rice, Judge. Action by William Gardner, as trustee in bankruptcy of John G. Haines, against John C. Haines and another. From a judgment for defendants, and from an order overruling a motion for a new trial, plaintiff appeals.

<p>Appeal from circuit court, Hanson county; Hon. Frank B. Smith, Judge.</p> <p>Action by' Isiah Dickinson and another against A. G. Hahn. Prom a judgment for plaintiffs, defendant appeals.</p>

Levi McG-ee, Judge. Action by Abel Odell against Edmund Petty, sheriff of Fall River county, and another, in which L. E. Steele intervened. From a judgment for plaintiff, defendants and the in-tervener appeal.

Joseph W. Jones, Judge. Action by Janet Hansberger against James P. Mulhall and others, impleaded with P. L. Blackman and another. Prom a judgment in favor of defendants Mulhall and others, defendants Blackman and another appeal.

<p>Appeal from circuit court, Bon Homme county; Hon. E. G-. Smith, judge.</p> <p>Action by Bon Homme county against J. A. McLouth. Judgment for defendant, and plaintiff appeals.</p>

W. G. Rice, judge. Action by George W. Glover against the Manila Gold Mining ■& Milling Company, a corporation, and others. From an order overruling their demurrer to the complaint, defendants appeal.

<p>In an action to rescind an exchange of land on the ground of fraudulent misrepresentations as to the value of the land received by plaintiff, evidence considered, and held sufficient to support a jury finding that plaintiff was misled.</p>

<p>Appeal from circuit court, Brown county; Hon. J. H. McCoy, Judge.</p> <p>Action by the Mississippi Lumber & Coal Company against James Kelly. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Under Pen. Code, sec. 311, defining a "battery as a willful and unlawful use of force upon the person of another, and section 312, providing that to use force upon another is not unlawful, when committed in self-defense or in defense of another, the use of force will be presumed to have been unlawful when shown to have been committed without excuse or "justification; but, when accused introduces evidence of self-defense or defense of another, the burden is not shifted to him to substantiate such defense by a preponderance of the evidence, but it devolves upon the state to then prove beyond a reasonable doubt that the alleged justification did not exist.</p>

<p>Where one of the respondents died prior to the decision of an appeal for an order granting a new trial, and respondents had every reason to anticipate that the order would he affirmed, and that it would he necessary to substitute deceased’s executor for the new trial, and notwithstanding such fact and their knowledge of deceased’s death neglected to have such substitution made until after the decision of the appeal, and thereby made necessary a reargument, the costs of the reargument should not be taxed against appellants, although the order appealed from was affirmed both on the original hearing and on the reargument.</p>

<p>Appeal from circuit court, Beadle county; Hon. Loring E. Gappy, Judge.</p> <p>Action by Wellington Jackson against John M. Bailey. Judgment for defendant, and plaintiff appeals.</p>

<p>1. One who purchases a note and mortgage and has her name filed in as indorsee of the note and assignee of the mortgage, and reduces the note and mortgage into her actual possession, is not required to record the assignment, or give notice of the same, in order to protect her interest therein as against subsequent purported assignees of the mortgage.</p> <p>2. An assignee of a mortgage who takes posesssion of the note and mortgage through her husband as her agent, and has her name; filed in as indorsee of the note and assignee of the mortgage, and leaves the papers in her husband’s possession, is not negligent in failing to make inquiries of her husband as to their whereabouts.</p> <p>3: One buying a mortgage from a person not in possession of'either the note or mortgage must exercise more than ordinary diligence to ascertain who is in,possession of the note and mortgage, especially when the assignment under which he claims only describes the mortgage, and makes no reference ‘to the note.'</p> <p>'4. One who purchases a mortgage' without also acquiring the mortgage debt is presumed to know that lie takes no title, and cannot .Claim that he was misled by the fact that a prior assignee of the mote ' and mortgagee, who had reduced the same to her possession, had failed to record her assignment.</p>

<p>Appeal from circuit court, Pennington county; Hon. Levi McGee, Judge.</p> <p>Action by Mineral School District No. 10 against the county of Pennington. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Though certain .defenses.were by the court correctly .stricken..from an amended answer., as not conforming to the «order allowing defendant to amend, the court should have permitted the insertion fh'. -of-sU'ch'defenses on defendant’s subsequent motibn’,' made'befor4 the next term.of court at-, which.a trial, c'o'nld‘be had! where :the defenses, if sustained, would have entitled defendant to; jud'g-f . ment, and one of them would have been barred by a judgment in ■ the'action.</p> <p>'2."’As! under the code system, defendant may plead as "many defenses a's he'ihay’have, thie"-denial of a motion to amend-an answer bV in--.sertirigí certain,-.defenses'because inconsistent «With-Other defefiseit , t !r ..previously- set up in the answer was a misuse of «liscretion, en-. titling defendant to a new trial. . ’.I-.. 7;,', . i-.w . Yi.sA- ,- J -</p> <p>3. ,A contract for the sale of land used the term “-agent” ^11 connection with defendant’s name as" vendor, and the words, “subject to the 4'"’ 1 ratification of'-the ownfer of the land',’"’ but was made between'de- : - fendant; “agent,” a-nd'plaintiff, ¡and signed \yith-.-defóhdant’sp.nam'<s, “by-:-r” —defendant covenanting ,to,(.Qonvey in fee simple— * and stipulated that, on plaintiff's failure to perform as vendee, he would be'liable'for any damages sustained'by'defendant; thé ' -..salfe fi'oRtó bé'binding on defendant’s part until receipt by him'bf -■ the- cash payments “inkhis office,-”,.’ánd.; “safe .approved.-Held, ,that .the agreement was executed by «leijíyidant vendor individually and "not as agent of the, owner, of the land. _</p> <p>‘Í., in an action by plaintiff, for breach of the contract, a deed from „t}ie owner to ¿'third party, and k subsequent deed from’thé‘latter to defendant,-together With- a' letter front ‘the nwnfer fti ’hiS-.b¿hKl recting delivery of bis deed to the third party on payment of a certain sum, offered by defendant as evidence of his ability to perform the contract, was admissable to disprove plaintiff’s allegations of defendant’s bad faith in entering into the agreement.</p>

Circuit Court, Pennington County. ' Hon. Levi McGee, Judge. Action by Charles E. Gibson against Ethan L. Allen. Prom a Judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. ■ An action upon a sealed' instrument can be commenced within twenty years after the cause of action shall have accrued. Landauer v. Sioux Palls Imp. Co., to S. D. 205; Heffie-man v. Pennington County, B S: D. 162; § § 39, 57, 58 Code' Civ.

<p>Appeal from circuit court, Hand countv; H >n. L >ring E. Gaffy, Judge-</p> <p>Action by William Miller against Franklin J Berry and another (Mary Kunz intervener) From a judgment in favor of plaintiff, intervener appeals.</p>

E. G. Smiti-i, Judge. Action by the Iowa Falls Manufacturing Company against Percy Farrar. From a judgment overruling a demurrer to a paragraph in defendant’s answer, plaintiff appeals. The law defining the duties of foreign corporations and fixing the terms upon which they are permitted to do busiñess in this state, upon which respondent relies to defeat this action, is found in chapter 47, page 52 of the Session Laws of 1895.

<p>Appeal from circuit court, Minnehaha county; Hon J. W. Jones, Judge.</p> <p>Habeas corpus, on relation of Thomas W. Taubman, against R. J. Huston, sheriff. From an order denying the writ, relator appeals.</p>

Fkank B. Smith, Judge. An information was filed against G. R. Struble for making a false financial report of the assets of a state bank.- From an order sustaining a demurrer to the information, the state brings error.

Joseph W. Jones, Judge. Proceeding by William M. Hartshorn against Jessie A. Smith and another, executors. Prom a judgment of the circuit court dismissing the petition on appeal from the county court, petitioner appeals.

<p>The complaint in an action for malicious prosecution alleging that defendant maliciously charged plaintiff in a sworn complaint before a justice of the peace with the crime of macilious mischief, on account of which he was arrested, and, to obtain his release, gave a bond, and that at the time set for the hearing before said justice of said charge said charge was dismissed by the state’s attorney acting for the state, and with the consent of defendant, does not affirmatively show that the malicious prosecution had terminated in plaintiff’s favor before commencement of the action, which is necessary for its maintenance.</p> <p>Haney, J., dissents</p>

<p>1. A city could not obtain equitable relief against a default judgment entered on warrants, one of which, was, by 'mistake of law, drawn on the wrong fund for an amount indefinitely excessive, and the other of which had not matured when the judgment was entered, where the defenses against the enforcement of such warrants were matters of public record, and the city officials had, for five years before seeking relief against such judgments, ample means of access to such records, although they claimed .that it was a “difficult matter” to locate the papers relating to the issuance of the warrants.</p> <p>2. Where mistake, fraud, or ignorance of facts is relied upon as ground for equitable relief against a judgment, and delay in seeking such relief is attempted to be excused, the complaint must show that plaintiff has not slumbered on his rights, and that the remedy has been invoked within a reasonable time after a discovery of the facts has or should have been made.</p> <p>3. Where a person seeks to enjoin a judgment at law, the specific grounds upon which his equity rests must be distinctly set forth and it is-indispensable that the complaint show upon its face-that the judgment assailed was not rendered by reason of his own negligence in not making the necessary defense.</p> <p>4. In a suit by a city to enjoin a judgment on warrants, where one of the warrants was confessedly valid, and the payee named in the other had constructed a sidewalk, for which he was entitled- to a warrant on a fund created by special assessment, against city prop^ erty, the failure of the city to tender the just amount due, or the warrant to which defendant was confessedly entitled, violates the ' maxim that one who seeks equity must do equity.</p>