Volume 2 — Dakota Reports

ActioN in equity to cancel three deeds from plaintiff to defendant, and to set aside a tax deed from the treasurer of the city of Yankton to the defendant. Upon the trial in the court below, the presiding Judge made the following findings of fact and conclusions of law, covering all the issues. FINDINGS OF FACT. I. The plaintiff in this action, Elizabeth Wambole, was born on the fifteenth day of November, 1849. II.

The facts are stated in the opinion. This is an action brought by^the respondents, under the Mining Act, Political Code, 162, § 20, to recover of the appellants the possession of certain mining property alleged to have been entered upon by them during the temporary absence of the respondents therefrom.^ The plaintiffs in their complaint allege a peaceable possession in themselves, a temporary absence, a fraudulent entry and detainer ■ by defendants, a demand, and pray for an…

On the twentieth day of August, 1878, come the respondents in the above entitled cause, for the purpose of this motion only, by their attorney, W. H. Parker, and move the Court to dismiss the appeal in said cause, for the reason that said Court has not jurisdiction to try and determine the same, for that á notice of appeal was not served.

<p>1. appeal: pbactioe. An appeal will not lie from an order of the District Court sustaining a demurrer to one of the several separate defenses in an action, while the other issues raised in the District Court remain undetermined, and no final judgment has been rendered in such action.</p> <p>2. appellate JURISDICTION OP supbeme COURT. Section 1869 of the Revised Statutes confers upon the Supreme Court of this Territory the authority to hear and determine writs of error and appeals from final decisions or judgment of the District Courts, and not independent appeals from orders made or decisions pronounced, which are in effect merely interlocutory.</p> <p>3. PINAL JUDGMENT. No judgment is final which does not terminate the litigation between the parties to the suit.</p> <p>NoTE.-r-This construction of section 1869 of the Revised Statutes has been since ratified, and the defects in the law indicated in the foregoing opinion remedied, by act of the .Legislative Assembly, Approved February 20,1879. Reporter.</p>

The’facts are stated' in the opinion. The appellant in the above entitled cause urges, that the mortgage in question in this case is… Held: the findings must support the judgment, and no facts in issue will be presumed to have been found, except those which are found.” Assuming the above to be the law, it was absolutely necessary for the trial court to have found that the proceeds of the mortgaged property was to have been applied to the payment of the mortgage debt…

The facts are stated in the opinion. This is an action of ejectment brought by plaintiff to recover possession of a part of a certain lot in the city of Deadwood. Held: that it was unavailable, because not presented in the court below. The question as to whether the lease is or is not illegal and void, is not, therefore, before this court, and cannot be considered here.

The plaintiff alleges that he is, and has been for more than nine months last past, the owner, and is now entitled to the possession of the premises in controversy; that about’the 25th day of April, 1877, and while plaintiff was in possession, the defendants unlawfully entered upon and ousted the plaintiff therefrom, and have ever since withheld possession thereof from plaintiff; demand of possession, and refusal by defendants; that the value of the use and occupation of the…

<p>1. OFFICER ex-oppioio: bond: LIABILITY. The Statute prov ded for the election of a judge of probate, fixed his bond, and further provided that he should be ex-officio county treasurer. Held: — That his bond as judge of probate covered his duties as county treasurer, and that he and his sureties would be liable thereon for any breach of its conditions m the discharge of the duties of either office.</p> <p>2. practice: demurrer: defects in complaint. Upon the argument of a demurrer to an answer the defendant may attack the complaint upon the grounds that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action. And if it appears that the objections thus raised are well taken, the defendant will be entitled to judgment, notwithstanding the defects in the answer.</p> <p>3. -: complaint : essential AVERMENTS. The words, “ facts constituting a cause of action,” as used in the Code of Civil Procedure, mean those tacts which the evidence upon the trial will prove, and not the evidence which will be required to prove-the existence of the facts.</p> <p>4. -: -: -. Every fact which the plaintiff must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred and set forth according to their legal effects and operation, and not the evidence of those facts, nor arguments, nor inferences, nor matters of law only.</p> <p>5. PUBLIC OPPICER: duty to ACCOUNT: DEMAND. When the law makes it the duty of a public officer, in retiring from office, to account and make return to the proper authorities, and. to deliver to liis successor in office all public records, books, papers and funds pertaining to his office; upon failure or refusal to do so, no demand is. necessary before bringing suit.</p> <p>6. -: bond : conditions. The bond of a judge of probate and ex-officio county treasurer was conditioned that “ he shall well and faithfully, and impartially perform the duties and execute the office * * without fraud, deceit, or oppression.” Held: — That his liability was that of an insurer, and not measured by the law of bailments, and that he was bound, not to exercise due care and diligence in the discharge of his duties, but to perform them absolutely, without conditions or exceptions, unless prevented by an irresistable super-human cause, or by the act of a public enemy.</p> <p>7. irresistable super-human cause: in what it consists. The words “ irre-sistable super-human cause,” are equivalent to, and are used in the same sense as “act of God.”and consists in natural necessity, as wind and storms which arise from natural causes, and which operates without any aid or interference from man, and is distinct from inevitable accident.</p> <p>8. -: accidental EIRE: EXCUSE. Accidental fire, not caused by lightning is not an irresislable super-human cause, and will not excuse from the performance of an obligation, unless especially so stipulated, or when the party is bound only to the exercise of reasonable care and diligence.</p> <p>9. PUBLIC EUNDS: SAEE KEEPING: LIABILITY OE TREASURER. The fact that a county fails to furnish a saje, on request of the county treasurer, is no excuse for the non-performance of his obligation. He becomes personally responsible, and in the absence of any statutory provision, must provide for the safe keeping of the funds and property coming into his hands.</p>

Action to recover premiums paid on a policy of life insurance. Verdict, and judgment for plaintiff. The facts appear in the opinion. No briefs filed.

Writ of error to the District Court of La/wrence County. The defendant was indicted in the District Court of Lawrence county. May term, 1878, for the murder of one Forbes. Held: erroneous. It took from the jury the determination of a fact peculiarly within their province to determine.

The facts pertinent to the points decided are stated in the opinion. The power to condemn private property against the will of the owner must be strictly pursued with all constitutional and statutory limitations and directions for its exercise, and the courts will require a strict compliance with all the conditions precedent to the exercise of such a power. (2 Dillon on Mu. Cor., §§ 469-70, and cases cited; Cooley’s Const. Limitations, 530; Cooley’s Const.

Writ of Error to the YcmJcton County District Court. The facts are stated in the opinion.

Claim and delivery to recover possession of a horse, harness and wagon. The complaint alleges that on the 9th of April, 1878, the plaintiff was lawfully possessed of the property, then and ever since his property, of the value of $201. That on that day defendants wrongfully took the property from the possession of, and unjustly detain the same from plaintiff; damage to plaintiff in the sum of $125, a demand of delivery to plaintiff and refusal of defendants.

<p> Writ of error to the District Court of Lawrence County. </p>

The facts are fully stated in tlie opinion of the Court. This was an action brought by the respondent against the appellant, D. T. Bramble and his sureties, for failure to perform his duties as administrator of the estate of J. D. Vanderhule, deceased.

<p> Writ of Error to the District Court of Minnehaha County. </p> <p>The facts are fully stated in the opinion of the Court.</p> <p>cited:</p> <p>(Potter’s Dwarris on Statutes, 119; 1 Wharton Crim. Law, § 379; State v. Loftin, 2 Dev. & Bat., 31; Neales v. State, 10 Mo., 498; Com. v. Thwrlow, 24 Pick., 374; State v. Webster, 5 Hal., 293; Bishop on Stat. Crimes, § 605; Bishop Crim. Proc., (2d Ed.,) §§ 636-7-9, and note 3; Sedgwick Stat. and Cons. Law, p. 50-51; Com. v. Hart, 11 Cush., 130-7 ; State v. Abbey, 29 Vt., 60; State v. Miller, 24 Conn., 522; People v. Toynbee, 11 How. Pr., 333.)</p> <p>cited:</p> <p>(Chitty Crim. Law, 283, b.; P. C:; c. 25, § 113; 1 Wharton Crim. Law, § 378; Mathews v. State, 5 Yerger, 233; State v. Adams, 6 N. H., 533; State v. Sommers, 3 Vt., 156; People v. Nugent, 4 Cal., 341; 1 Bishop Crim. Proc. § 639, note 5; Com. v. Hill, 5 Grat., 682-90; State v. Abbey, 29 Vt., 60; State v. Powers, 25 Com., 48; State v. Miller, 54 Conn., 522.)</p>

The facts are fully stated in the opinion of the Court. Defendant Post appeals. Argument is not required to establish the identity of parties in the two complaints. Held: “ It has always been considered that a decision of a demurrer was a judgment, whether it was absolute or whether it gave leave to amend. If it was for the plaintiff it authorized him to recover his demand unless within twentv days the defendant availed himself of the privilege to amend.

<p> Appeal from the District Court of Minnehaha County. </p> <p>The facts are fully stated in the opinion of the Court.</p> <p>No briefs filed.</p>

<p>i. BILLS OI? 33XOBBTION: Settlement OE. The practice in the preparation of bills of exception and transcripts to be brought to this Court, stated.</p> <p>2. same. Only so much of the evidence as serves to explain the pertinency of the objection, and that it is substantial, should be given, and. no more. The evidence should be classified and given in connection with each objection, or ground of insufficiency of the evidence to sustain the verdict or decision.</p> <p>3. this COURT: JURISDICTION OE. This Court, under the practice acts of this Territory, sits to correct the errors occurring in the District Courts, and not to try actions anew. It does not try and determine a case brought here by appeal or writ of error as a Court of original jurisdiction, upon the evidence; therefore the errors complained of must be clearly pointed- out to this Court in the transcript.</p>

PlaiNtiff appeals from the order sustaining the demurrer of defendants Snyder and Burdick, and the judgment for costs. Discarding the printed abstracts as being in some respects, inexact and misleading, a true statement of the case can only be reached by reference to the original transcript.

Writ of Error to the District Court of Yankton County, Second Judicial District. The defendant, Beebe, in company with W. H. Williams, George H. Cammack, and George Landphere, tlie deceased, on July 4th., 1879, were traveling with a team and wagon on their way from Beloit, Iowa, to Brule City, Dakota.

' Writ of error to the District Court of Lawrence County, First Judicial District. Indictment and conviction for embezzlement of the public moneys of the United States. The defendant mad§ a preliminary motion in this case, asking that another judge be called to preside at the trial, on the grounds of prejudice on the part of the presiding judge against him. The motion was denied by the court on the grounds that there was no power in the court to grant it.

I.Plaintiffs in this case commenced suit by issuing alternative writ of mandamus to said defendant requiring him to deliver books, papers and property pertaining to the office of register of deeds and exroffido county clerk of Armstrong county, or show cause to.the contrary before the Judge at his chambers in Yank-ton county. Defendant appeared and demurred to the writ. And the said demurrer being overruled, elected to stand on the demurrer.

<p> Appeal from the District Cowrt of Lawrence County. </p>

Abstract of Record — Complaint:—The plaintiffs in their amended complaint state their cause of action as follows: That they are the… Held: insufficient. The Court says: “ What is the nature and character of the defendant’s claim does not appear. * * * We suppose a complaint under that section ought to disclose the nature of the defendant’s claim, which has a tendency to throw a cloud over the title, and state such facts and circumstances in respect to such claim as show…

<p> Error to the Supreme Court of Dakota Territory. </p> <p>The facts are stated in the opinion of the Court.</p>

No briefs on motion filed. MotioN of respondents for an order to dismiss the appeal, upon the ground that no appeal lies to this court from an order denying a motion for a new trial, unaccompanied by an appeal from final judgment: Also motion of appellant’s counsel for an order granting leave to amend the notice of appeal so as to include an appeal from final judgment.

<p>' I. ERRORS APPARENT ON RECORD: review OE. Errors patent' upon the record are open to review in this court, without exception taken in the District Court; and such errors must be determined by an inspection of the record.</p> <p>2. practice: instructions: must be given as requested, or direotuv re-EUSED. A party is entitled to a direct response, in the mode provided by section 248 of the Code of Civil Procedure, to his requests for specific instructions to the jury; and the Court failing to endorse the requests as either “given ” or 11 refused,” but giving a part of such requests with modifications: Held, error, for which this court will reverse.</p> <p>3. SAME: INSTRUCTIONS: exceptions to. Exceptions to instructions by the Court should point out the specific portions of I he charge excepted to; and alleged errors in the charge not so pointed out, will not be considered by this court.</p>

<p> Appeal from the District Gowrt of Lawrence Cowniy. </p> <p>MotioN to substitute parties respondent, and attorneys.</p>

This was a controversy over a portion of mining ground claimed adversely by the parties to the action, their mining locations… Held: to prevent a forfeiture. It was further claimed by the plaintiff on the trial that said “Extension” tunnel was continued from time to time until it reached the ore body (designated in this case as the “ Terry Extension ” vein,) about January 10, 1878, which was the first discovery made in said claim; that prior to that time, to-wit:…

Appeal from the District Court of Lawrence Comity. ActioN to recover attorney’s fees. Tried by the court and findings of fact waived. Judgment for plaintiff.

<p> Appeal from the District Court of Yankton County. </p> <p>The facts are stated in the opinion.</p>

Upon the application of appellant, the.District Judge appointed three commissioners to assess the damages sustained by respondent, Alanson C,ovell, by the appropriation of… Held: that the oath was extra judicial and improper, and judgment reversed. III. The next exception relates to the admission by the commissioners of illegal testimony. ' Nearly all the testimony heard by them consisted of the opinion of witnesses as to the amount of damages sustainéd by the defendant.

<p>1. CREDITOR.: INSURANCE POLICY HELD BY: TRANSFER 03? TO CREDITOR APTER LOSS: RELEASE 03? debt : ■ NO CONSIDERATION. Where a policy of insurance held by a creditor as part security for a debt, contained a provision that the loss if any should be payable to such creditor, “ as his claim shall appear at that date,” an ’oral agreement between the debtor and creditor after the liability on the policy had become fixed by a loss, that the creditor in consideration of the transfer of the debtor’s interest in the policy to him would release the debt, if not executed bv a cancellation of the note, is of no avail as a defense thereto, such agreement being without consideration.</p> <p>2, INSTRUCTION: ABSTRACT PROPOSITION OF LAW: ERROR PREJUDICIAL. The giving of an instruction which is merely an abstract proposition of law without foundation in and not justified by the evidence, and, in view of the theory of the defense well calculated to mislead the jury, is error prejudicial to the plaintiff for which this court will reverse.</p>