Volume 19 — Utah Reports

Ogden Hiles, Judge. Action to quiet title and for damages for certain trespasses alleged. From a judgment for defendant plaintiff appeals.

E. Y. Higgins, Judge. Action in the nature of a contest between claimants by right of occupancy to determine who is entitled to a deed for a certain parcel of land on the Eureka townsite. From a judgment for defendant plaintiff appeals. The publication and posting of notice (as required by Section 2816, C. L. U., 1888) of the entry is a process, a summons to all persons whose interests may be affected by the issuance of a deed, to appear and assert their rights and claims.

A. N. Cherry, Judge. Application of I. C. Thoresen for a writ of mandamus directing the State Board of Examiners to audit and allow in accordance with the requirements of Section 963 of the Revised Statutes, an unpaid balance ($38.96) of an amount paid by the relator’s assignor on account of a lease of school lands, made in pursuance of Chapter 76 of the Session Laws of Utah, 18'92. From a judgment granting a peremptory writ defendant appeals.

Appeal fi'om the Fifth Judicial District Court, Juab County, Hon. E. Y. Higgins, Judge. Action by plaintiff for personal injuries alleged to be the result of an accident that occurred in defendant’s mine and through defendant’s negligence. From a judgment of non-suit plaintiff appeals, The court erred in granting said motion because no grounds at all therefor are stated in the motion.

Ogden Hiles, Judge. Application for an injunction to prevent defendant railT way company from constructing or maintaining any streetcar line on South Temple Street in Salt Lake City east of E Street, and also compelling said company to remove all iron, ties, and other obstructions by it already placed upon a portion of said street, and to restore said street to the condition it was in when defendant company entered thereon.

E. Y. Higgins, Judge. Action in ejectment for possession of certain mining ground. From a judgment for defendant, plaintiffs appeal.

Jacob Johnson, Judge. Action by plaintiff against defendant for damages for personal injuries alleged to have been inflicted by the negligence of defendant. From a judgment of non-suit plaintiff appeals. . It is the duty of those in charge of a train of cars to give signals and warnings independent of and not prescribed by statute, when in the exercise of reasonable care the same ought to be given for the safety of others.

A. N. Cberry, Judge. Action by plaintiff on a memorandum of agreement for tbe delivery of certain stock or tbe payment of a sum in the agreement mentioned. . From a judgment for plaintiff defendant appeals. The writing in question contains all the elements of a bailment and not a single element of a sale. Am. and Eng. Ency. of Law, 2d ed., Vol. 3, p. 33.

Ogden Hiles, Judge. Action for the purpose of obtaining permanent alimony-under Chap. 33, p. Ill, Laws of 1896. From a judgment dismissing plaintiff’s action, plaintiff appealed. A judgment which has for its basis a mere blank order is not worth the paper on which it is written, and we do not perceive under what authority it can be held to have any validity whatever. People v. Ray., 12 Pac.

Original application for a writ of certiorari to command the County Board of Equalization of Salt Lake County to return to the Supreme Court all the proceedings concerning a resolution of the Board whereby the assessment of certain property in Salt Lake City for the year 1898 was increased.

A. N. Cherry, Judge. Action to recover the amount of a promissory note which plaintiffs allege was executed by the defendants as an association known as the North Salt Lake Association, to one… Held: although he voted against it. Mechem on Agency, Sec. 73, last paragraph ; Eichbavm v. Irons, 40 Am. Dec., 540. The plaintiffs guaranteed the payment of the note, and took is up before maturity, and are therefore entitled to the same rights that Lorenzo Pettit, the payee, had.

A. G. Norrell, Judge. Action by plaintiff against defendant Gillispie as constable and his sureties on his official bond, for conversion. After plaintiffs had rested their case, defendant offered C. S. Patterson, defendant’s sole attorney, as a witness. The court on its own motion refused to permit the witness to testify except on condition that he retire from the case as attorney. This the witness refused to do. Judgment was rendered for plaintiffs and defendant appealed.

A. N. Cherry, Judge. Action by plaintiff in claim and delivery to recover possession of a certain soda fountain and for damages for its detention. From a judgment for defendants plaintiffs appeal. That the deed of assignment empowering the assignee to sell on credit is fraudulent and void, see Bern v. Shaughnessy, 2 Utah, 492 ; Sphrecht v. Parsons, 7 Utah, 107. The appellant was not bound to accept any tender made at the time and in the manner alleged in the answer.

Ogden Hiles, Judge. Action to quiet title and to recover possession of cer- ' tain real estate described in the complaint. From a judgment for defendants, plaintiff appeals. Morgan and Carlson were proper parties to the action for divorce where they are alleged to have conspired with the defendant to prevent the judgment for collection of alimony.

Ogden Hiles, Judge. Action to quiet title to three pieces of real property separately described in the complaint. From a judgment quieting and confirming the title of plaintiffs in one of the three pieces and directing a deed to defendant Salisbury for the other two, plaintiff appeals.

A. N. Cherry, Judge. Appeal from a final judgment of the District Court refusing to grant a writ of prohibition and dismissing plaintiffs’ petition therefor. Did the justice of the peace acquire jurisdiction of the defendant by the service of summons in Tooele County ? Summons can be served only in the county. E. S. 1898, Sec. 3682. We think that this section is so clear and positive that no mistake can be made in the meaning.

A. N. Cherry, Judge Action by the Home Fire Insurance Company against the treasurer and collector of Salt Lake County, to recover the amount of certain taxes levied on certain notes and accounts of the company for unpaid premiums, and which taxes were paid under protest. A demurrer to the complaint was sustained in the lower court, and the plaintiff company electing to stand upon its complaint, judgment was entered for the defendant. The opinion states the facts alleged.

H. H. Eolapp, Judge. Action by plaintiff for damages on account of personal injuries alleged to have occurred through the negligence of the defendant company in running its engine over and upon the plaintiff, who was a track walker in the employ of the defendant company. From a judgment of non-suit plaintiff appeals. That the engineer and the plaintiff were not fellow servants see, Chicago, etc., B. Co. v. Boss, 15 Sup. Ct. Eep., 190.

H. Hart, Judge. Action by plaintiff as the duly appointed receiver of the. Omaha Fire Insurance Company, against defendants on a promissory note, payable on demand, alleged to have been made under and by virtue of Sec. 3, Chap. 43, Compiled Laws of Nebraska, as set forth in the complaint. Defendants interposed and demurred- under the provisions of Subdivision 2 of Sec. 2875, Lev. Stat. 1898, and also Sec. 314, C. L. U. 1888 and Sec. 3143 C. L. TL 1888.

Original application for a writ of habeas corpus. Applicant was convicted of the crime of grand larceny in Uinta County, and now contends that he was convicted without due process of law; that only eight persons constituted the jury before whom he was tried, and that such action was in contradiction of Art. 1, Sec. 14, of the amendments to the Constitution of the United States ; and of Art. 6 of the amendments to the Constitution of the United States, and also that a…

Ogden Hiles, Judge. Action to set aside the forfeiture of a lease and seeking certain incidental relief. From a judgment for defendants, plaintiff appeals. Under the circumstances (in this case) he (defendant Park) could not insist upon the forfeiture clause without full notice to all parties interested, that in future he would not tolerate delays, and that he intended again to come back to the contract, and in future to insist upon a strict compliance with it.

H. H. Eolapp, Judge. Action by plaintiff after withdrawal from the defendant company for the withdrawal value of five shares of capital stock. Held: with one exception, that the plaintiff had a right to maintain this action at law, and that it was a matter of defense for the defendant to allege and prove that it had not sufficient funds to pay this claim, and, even if the defendant should allege and prove that it did not have sufficient funds to pay, then, in that case, the…

A. G. Norrell, Judge. Action. by plaintiff to recover damages for personal injuries. From a verdict for plaintiff defendant appeals. There is no need of citation of authorities to sustain the well established rule of law, that parol testimony of the contents of a writing is not competent, until it is shown that the writing itself can not be produced. The rule of law extends to rules for the regulation and government of the conduct of employees.

Wm. M. McCarty, Judge. Action by plaintiffs as stockholders of defendant bank in behajf of themselves and all other_stockholders, creditors, and others similarly, situated, against defendants for an… Held: after payment of the expenses of executing the trust, liable; First, for the payment of the creditors of the bank. Mercantile Co. v. Mb. Pleasant Co-op., 13 Utah, 213-231. And, as we have before urged, the receiver succeeded to the corporate rights of action.

H. H. Eolapp, Judge. Application for a writ of mandate to compel the respondent, as auditor of Ogden City, to draw a warrant in favor of petitioner for an amount claimed as salary for services as night jailor in said city. From an order denying the writ plaintiff appealed.

C. H. Hart, Judge. Application for a writ of mandate to compel the trustees of the Logan Irrigation District to file a map with the county clerk of Cache County, showing the location of the Logan and Benson canal and its branches; and to compel the Board of Trustees to take charge of, control, regulate, and maintain the same, and distribute the waters for the purpose of irrigation, to the relator and those interested in the canal and its branches.

(Note.) Appealed to U. S. Supreme Court, May-13, 1899. Appeal from the Fifth District Court, Juab County, Hon. E. V. Higgins, Judge. Action by plaintiff in aid of a protest and adverse claim to determine the ownership and right of possession of certain mining property. From a judgment for plaintiff defendants appeal.

Jacob Johnson, Judge. Action by plaintiffs as stockholders of the defendant, Price Water Company to have it adjudged and deteiv mined that said company is not a corporation, and that the stockholders thereof are the owners of a certain ditch and property as tenants in common according to their ownership of stock therein; the ditch and property having been operated and used by the company. From a judgment of non-suit plaintiffs appeal.

W. N. Dusenberry, Judge. Action by plaintiff to restrain defendant from in any manner obstructing or interfering with the water of Center Creek. At the trial a decree was entered fixing defendant’s rights in tbe stream, awarding tbe balance to plaintiff, and restraining each party thenceforth from interesting with the other. From such decree plaintiff appeals.

A. N. Cherry, Judge. Action to restrain the collection of a city tax levied upon property of the plaintiff for the year 1897 by the authorities of Grantsville City, a city of the third class, incorporated under the act of the territorial Legislature. The lands on which the tax in controversy was levied are situated about one and one-half miles from platted and built-up portions of the city and are used for agricultural purposes.

Ogden Hiles, Judge. Action to foreclose a sub-contractor’s mechanics’ lien. On the trial the admission of the notice'of lien in evidence was objected to by the defense on the ground that it was not in conformity with the provisions of Sec. 1386, R. S. 1898. The objection was overruled and exception taken. From a judgment for plaintiff, defendant appeals. At the trial plaintiff asked the court to allow an attorney’s fee taxed as costs in pursuance of Sec. 1400, R. S. 1898.

<p>Appeal from the Third District Court, Tooele County, Hon. A. N. Cherry, Judge.</p>

<p>Appeal from the Third District Court, Tooele County, Hon. A. N. Cherry, Judge.</p>

A. N. Cherry, Judge. Action upon a bond of defendant Gronlund, as executor. From a judgment for plaintiff, defendants appeal. The rule of law is plain that when a man acts in a double capacity, and the time comes when he ceases to be the one thing and becomes another, the character of the fund changes likewise, and therefore the sureties upon his bond in this first capacity are no longer liable. Wooley v. Price, 37 Atl.

Juab County, Hon. E. Y. Higgins, Judge. Action by plaintiff against defendant for damages for personal injuries alleged to have occurred through the negligence of defendant. ■ After plaintiff had… Held: under the-act of 1879, that plaintiff had a right to settle his case without his attorney’s consent, Lees, V. 0. Co., 126 N. Y., 579; Poole v. Belcha, 131 N. Y., 200; Peri v. By. Co., 152 N. Y., 521, 527; Prwiting Co. v. Printing Co., 38 N. Y., 784.

Original application in the Supreme Court by the State of Utah against Charles H. Hart, District Judge, for a writ of mandamus to compel him to impanel a jury of twelve men to try a defendant .on a' criminal indictment returned prior to the admission of Utah as a State.

Ogden Hiles, Judge. Action to enjoin defendants from continuing to divert water which plaintiff claims the exclusive right to use for irrigation and domestic purposes. From a judgment and decree dismissing plaintiff’s complaint and entering judgment for defendants on their cross-complaint, plaintiff appeals.

A. G. Norrell, Judge. Action by plaintiff to foreclose a mortgage. Defendant Wickel, respondent here, answered, setting up that she was the lawful wife of defendant Tufts at the time of his death, and as such entitled to a' dower interest in the mortgaged premises. From a judgment and decree in favor of defendant Wickel, plaintiff appeals. The trial court found that Mrs. Wickel was entitled to dower in these lands.

Appeal, from the Seventh District Court, San Juan County, Hon. Jacob Johnson, Judge. Defendant was prosecuted and convicted of the offense of grand larceny, and insists that the trial court erred in refusing to discharge him upon motion made for that purpose and based on the ground that the case was not tried at the next term after filing the information. as required by Sec. 5065, E. S. 1898.

Warren N. Dusenberry, Judge. Judgment was entered August 5, 1897, and on February 18 defendant I. E. Freeman filed bis verified petition in the case to modify and correct the judgment. On tbe 12th day of September, 1898, the judgment was modified and corrected in accordance with the petition. From the order and judgment of modification plaintiff appeals. .STATEMENT OF FACTS. In this case, trial was had before the court on April 12, 1897.

W. M. McCarty, Judge. Defendant was convicted of grand larceny. A demurrer was filed in the court below, on two grounds: First, that the facts stated did not constitute a public offense; second, that it does not substantially conform to the requirements of Secs. 4731 and.4732, E. S. 1898, in that it does not allege a day certain on which the offense is alleged to have been committed. The demurrer was overruled by the court below.

Original application in this court for a writ of babeas corpus. Applicant was convicted on tbe 19th of September, 1898, on an information charging robbery, by a jury of. eight persons and sentenced to the penitentiary. Petitioner claims that such conviction and imprisonment was illegal upon three grounds. First, that his privileges and immunities as a citizen of the United States under Sec. 1, Art. 14 of amendments to the Constitution of the United States have been abridged.

A. G. Norrell, Judge. Defendant was convicted of the crime of assault with intent to commit rape. On the trial, when the prosecuting witness was testifying, the presiding judge ordered defendant from the presence of the witness, and ordered him to take a seat in a part of the court room away from the jury and witness where he could neither hear said witness nor could he see her nor the jury while she was so testifying.

A. N. Cherry, Judge. Action by plaintiff to recover damages for personal injuries alleged to have been received by plaintiff through^ negligence of defendant. From a judgment for plaintiff, defendant appeals. Tbe court erred in not granting defendant’s motion fo a non-suit at tbe close of plaintiff’s testimony. Tbe plaintiff knew of tbe excavation made in front of bis premises, four or five months prior to tbe nigbt of tbe injury, and had observed it daily during that time.