Volume 19 — Wyoming Reports

Carroll H. Pa-rmelRE, Judge. The material facts are stated in the opinion. One of the leases in question was entered into during the month of February, 1908, and the other leases between the 1st of April and the last of September, 1906.

Carroll H. Parmelee, Judge. The action was brought and judgment recovered against Dan McCoy and John Hecht, defendants, by the plaintiff, the Acme Coal Company, a corporation. The defendants prosecuted error. An amendment to the petition in error was allowed striking out the name of McCoy and leaving. John Hecht as the sole plaintiff in error. The material facts of the case are stated in the opinion.

Carroll H. Parmelee, Judge. The action was brought by the Acme Coal Company, as the assignee of a certain lease, to recover from the lessee and his guarantor certain rent alleged to be due under .and by virtue of the lease. The guaranty is set out in the opinion in No. 639, a case between the same parties.

Charles E. Carpenter, Judge. The material facts are stated in the opinion. It was error for the court to admit, over objection, testimony tending to show that Tobin, the mortgagee and in-tervener, was not a stockholder and director of the defendant company. Two shares of stock were issued to him and he testified that he was told that he would be given two shares of stock.

ChaRles E. Carpenter, Judge. Action brought by the Wyoming Central Irrigation Company, a corporation, against Henry M. Farlow as County Treasurer and Collector of Taxes of Fremont 'County, to enjoin the collection of a tax levied upon the Riverton ditch, an irrigating ditch or canal constructed by the plaintiff corporation.

. Error to the District Court, Big Horn County, HoN. Carroll H. ParMEleE, Judge. The. material facts are stated in the opinion. The provisions of the statutes restricting the method of conveying or incumbering a homestead have been held to be. mandatory, and that an instrument not executed in the manner required by such statutes is invalid as to the homestead.

Car-rol H. Parmrlrr, Judge. The material facts are stated in the opinion. A party who stands upon a general demurrer admits all the material facts well pleaded. (State v. Irvine, 14 Wyo. 318; Spaulding v. Douglas, (Neb.) 122 N, W. 889; State v. Grant, 12 Wyo. 1.) If sufficient facts are set out in the petition to constitute a cause of action upon which the plaintiff would be entitled to any relief the sustaining of a demurrer thereto is error. (Summers v. Ins.

Heard on motion to dismiss. (On motion to dismiss.) Every act required to perfect an appeal must be completed during the statutory time allowed for taking the appeal, viz: filing the petition in error, precipe for summons in error, and application for an order for the original papers and transcript; and the summons must be servecl and returned and the transcript filed within this time, or the case should be dismissed for want of jurisdiction.

•Error to the District Court, Fremont County; Hon. Charles E. Carpenter, Judge. The material facts are stated in the opinion.

Carroll H. Parmelee, Judge. The material facts’’ are stated in the opinion. The verdict and judgment rendered, in this case is most unreasonable. It will be noticed that the right of plaintiffs to recover depended mostly, if not altogether, upon evidence 'that the trespass had been committed by persons claimed to have been in the employ of the defendant.

Craig) Judge. The- material facts are stated in the opinion. The statute of limitations had run before the bringing of the action, both as-to the grading on 5th street and on Front street.

Charles E. Carpenter, Judge. Heard on motion to dismiss. In the brief filed in support of the motion' to dismiss, the same points were made,and authorities cited as in the case' of Lobell v. Stock Oil Co. (No. 668).

Rodt eric N. Matson, Judge. The plaintiff in error, James Vines, was convicted of selling intoxicating liquors without a license and brought error. The material facts are stated in the opinion.

Roderick N. Matson, Judge. The plaintiff • in error, Walter Russell, was prosecuted and convicted of the offense of selling intoxicating liquors without a license, and brought error. The material facts are stated in the opinion. ■ A fine of $600 for selling intoxicating liquors to three persons at practically the same time and place is excessive, notwithstanding that the defendant is prosecuted for each sale upon a separate count.

Roderick N. Matson, Judge. William Eggart, Julius P. Hansen, and William Ross were separately prosecuted for selling intoxicating liquors without a license, and each was convicted and brought error. These cases, together with the case of Russell v. State (No. 635), were consolidated for the purpose of the argument and submitted together. The material facts are stated in the opinion.

Carroll H. PaRmeRi®, Judge. The material facts are stated in the opinion. Upon the pleadings and affidavits in the case, the quit claim deed of Stowe must be .considered a prior lien upon, the premises therein described. But whether or not Powers or Stowe have a first lien thereon is immaterial here, for in either case Stowe had the right to foreclose by advertisement.

; Hon. Roderick N. Matson, Judge. The material facts are'stated in the opinion. The right of the sheriff to the fees in question primarily depends upon the meaning of the term “civil cases” as used in Section 2 of Article XIV of the Constitution. We contend that .said term was used in its ordinary meaning and acceptation, and that it should not be given a strained or contracted construction.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. The plaintiff sought to recover upon an express contract for services to be performed at an agreed price. Although he alleges that the services were reasonably worth $ioo per month, the same may be regarded as surplusage. It was therefore error to permit the plaintiff to recover upon quantum meruit. Having pleaded an express contract, the plaintiff was not entitled to recover ’upon an implied contract.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. The verdict of the jury is not sustained by evidence and is contrary to law. (1) Because there is no' evidence of premeditation. (2) Because there is not sufficient evidence to sustain a verdict of guilty in any degree.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. It is clear from the pleadings filed by Lonabaugh that he is indebted to Kennedy in the sdm of $2,500. There is nothing in the record showing Lonabaugh to be entitled to anything on account of the 50,000 shares of stock held by Kennedy.

David H. Craig, Judge. The material facts are stated in the opinion. The control of a ditch or headgate by the water commissioner is a deprivation of or damage to private property within the inhibition of the constitution.

<p>Appeal and Error — Final Judgment — Demurrer—Dismissal.</p> <p>1. An order sustaining a demurrer to one of the causes of action in a petition cannot be reviewed on error, where final judgment was not entered upon the order sustaining the demurrer or upon the cause of action demurred to.</p>

' Error to the District Court, Uinta County; Hon-. David H. Craig, Judge. The material facts are stated in the opinion. Upon the facts Blyth, the owner of the goods, was bound by the acts of his agent, the Redman Van Storage Company. (5 Ency. L. 305; 6 Cyc. 408; Hill v. R. R. Co.', 28 A. & E. R. R. Cas. 87; Nelson v. R. R. Co., .48 N. Y. 498; Zimmer v. R. R. Co., 137 N. Y. 460;. Smith 'v. So. Exp.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. It is incompetent to prove legal title to land by parol evidence. (Bexer Co. v. Terell, (Tex.) 14 S. W. 62; Benjamin v. Shea, 83 la. 392; Eavery v. Brooke, 37 Ill.

David H. Craig, Judge. The material facts are stated in the opinion.

Carroll H. ParmllRR, Judge. The material facts are stated in the opinion. The plaintiff’s testimony that at the time of-his arrest he brought several witnesses with him' to the county seat to ' testify in his behalf and stating the amount expended, for that purpose was incompetent and should have been excluded.

Charles E. CarpENTEr, Judge. John Hollywood was tried upon a chárge of murder in' the first degree, and convicted of manslaughter. He brought error. The material facts are stated in the opinion.

Ekror to the District Court, Albany County; Hon. Charles E. CarpRntRr, Judge. The action was replevin brought by George H. Hunt against E. Thompson. The material facts are stated in the opinion.- • , No return bf tire property taken upon a writ of replevin can be adjudged to the defendant'under our statute, but the defendant is entitled.only to recover damages if .the finding is in his favor. (Comp.

Reserved Questions from District Court, Converse County; Hon. Charles E. Carpenter, Judge. The reserved questions are. stated in the opinion. The general propositions involved in the question as- to the legislative procedure in the passage of the act referred to in the reserved questions were fully considered by this court in Hynds v. Cahill, 12 Wyo. 225, and State v. Swan, 7 Wyo. 166, and that phase of the case is submitted on the part of the plaintiff without argument.