Volume 2 — South Dakota Reports

Hon. John W. Nowlin, Judge. ■ Appeal to the circuit court of Pennington county from the decision of the board of county commissioners of that county, rejecting plaintiff’s claim for damages for taking and appropriating his certain real property for public use. The issues were tried to a jury and a verdict was rendered for plaintiff and judgment thereupon entered. Defendant appeals. The facts are stated in the opinion. The act of congress § 2477 Rev. Stat.

Hon. John W. Nowlin, Judge. The facts and the nature of the proceedings are stated in the opinion and are similar to those in Wells v. Pennington County, 2 S. D. 1.

Hon. D. Haney, Judge. The facts so far as material are fully stated in the opinion. . A principal cannot claim the benefits of a bargain made by his agent without adopting the instrumentalities by which it was consummated. Ellwell v. Chamberlain, 31 N. Y. 611.

Information charging the plaintiff in error with a violation of the provisions of Chapter 54 of the Laws of South Dakota of 1890. Verdict of guilty rendered and judgment thereupon entered. Defendant brings error to this court. The facts and the nature of the proceedings are fully stated in the opinion.

Opinion upon rehearing. An appellant’s abstract is an allegation that the statements therein are a true presentation of the portions of the record therein referred to. If no additional abstract is made and no denial by an abstract of the appellant’s statements, the appellate court is governed in the hearing and decision of the case by the. statements in the appellant’s abstract.

The question submitted was the construction of Sections 18 and 19 of the revenue.law, entitled “An act prescribing the mode of making assessment and the levy and collection of taxes, and for other purposes relative thereto, ” approved March 9, 1891.

The question submitted to the judges was the construction of Section 7, Chapter 9, of the school law, entitled “An act to establish a uniform system of education for the State of South Dakota, and to repeal certain legislation relating thereto;” approved March 12, 1891.

Honorable Charles M. Thomas, Judge. Action to recover for goods, wares and merchandise, alleged to have' been sold and delivered by plaintiff to defendants. The defendants interposed a general denial and counterclaim. At the close of the evidence defendants moved the court to direct a verdict in their favor, which motion was allowed and judgment thereupon entered. Plaintiff appeals. The facts are fully stated in the opinion.

Hon. Charles M. Thomas, Judge. The facts so far as material are fully stated in the opinion. The statutes of the Territory of Dakota relating to town-sites, make no provision for the correction of mistakes and vested no jurisdiction in the court below to grant the relief prayed for by plaintiffs. To be corrected, therefore, a mistake must be one for which equity can afford relief.

Frank R. Aikens, Judge. Action by plaintiff as receiver of a national bank to recover upon a promissory note given by defendant to the bank. The defendant answered, pleading an alteration of the note as a defense. There was a verdict for plaintiff and judgment was thereupon entered. Defendant appeals. The facts are fully stated in the opinion.

Hon. James Spencer, Judge. Action to recover the value of certain personal property levied upon by the defendant, Balgord, as sheriff: of Brookings county. The cause was referred, and upon the report of the referee judgment was entered in favor of plaintiffs. Defendants appeal. The facts so far as material are stated in the opinion.

Hon. James Spencer, Judge. Tlie facts are fully stated in the opinion. County warrants are not contracts and are not negotiable instruments, in the sense of the law merchant. In case of a sale of county warrants there is no implied warranty on the part of the Arendor except that they belong to him and are not forgeries. Wall county v. Monroe, 103 U. S. 74; White v. Robinson, 51 Mich. 73; SchoolDistrict v. Stough, 4 Neb. 359; Burroughs on Law of Pub.

Hon. J. O. Andrews, Judge. Indictment charging defendant, a member of a partnership, with embezzlement of the partnership funds. The defendant demurred to the indictment on the ground, among others, that it did not state a public offense, and the demurrer was sustained. The state brings error to this court. The material facts are stated in the opinion.

Hon. Charles M. Thomas, Judge. Action upon a promissory note, executed by the defendants Lardner & Moore to Ismon & Ayers, and endorsed by them and by the defendants Ayers and Wardman. Trial to a jury. At the close of the testimony the court directed a verdict for plaintiffs and against Lardner, Moore, Ayers and Ward-man, and judgment was thereupon entered. These defendants appeal to this court. The facts so far as material are fully stated in the opinion.

Motion to set aside and vacate a levy and sale under an execution issued upon a judgment entered upon a default. Motion overruled. Defendant appeals. The facts are stated in the opinion. As the sale in this case was unconfirmed at the time the motion to vacate was made, that was the only step which the defendant could take to cure the irregularities. • A conveyance made under a chancery or probate sale, in the absence of an order confirming such sale, is void.

. Hon. John W. Nolin, Judge. Action to restrain the defendant from collecting certain taxes levied on the personal property of plaintiffs for the year 1887. The defendant had judgment. Plaintiffs appealed. The facts are fully stated in the opinion. An assessment roll is either valid or void when returned, and to be valid must be returned as the' statute provides. Marsh v. Board of Supervisors, 42 Wis. 502; Morrill v. Taylor, 6 Neb. 236; Lyman v. Anderson, 2 N. W. 732.

Action to quiet title in the plaintiff to certain lands, and to set aside certain conveyances of said lands under which the defendant claimed. Defendant demurred to the complaint which demurrer was sustained. Plaintiff appeals. ' The facts are fully stated in the opinion. No corporation, either domestic or foreign, can transact in this state the business of buying and selling real estate under our state constitution. Art. 17, §§ 6, 7, Const. South Dakota; § 567, Civ.

Hon. John W. Nowlin, Judge. The plaintiff in error was tried in the circuit court in and for Custer county, under an indictment charging him with murder. He pleaded not guilty, and interposed the defense of insanity. He was convicted and brings error to . this court. The facts are stated in the opinion.

Hon. H. G. Fuller, Judge. Application for a mandamus to compel the defendants to reconvene as a board of canvassers of Sully county, and to count, canvass and abstract all the votes cast in said county. The defendants first moved to dismiss the application, which motion was denied. They then demurred to the application, and the demurrer was overruled. They then answered and the cause was tried upon the issues thereupon raised. Plaintiff had judgement.

Hon. A. W. Campbell, Judge. Action in forcible entry and detainer to recover possession-of certain real property leased by plaintiff to defendant. The action was certified from justice court to the circuit court be- • cause of the issue of title to the realty in question presented by the pleadings. A verdict was directed' in favor of plaintiff at. the close of the trial and judgment was thereupon entered. Defendant appeals. '' The facts are stated in the opinion.

<p>Reporter: A rehearing was granted in this case by the court September 15th, 1891. Upon the rehearing the court adhered to the views expressed in the foregoing opinion. (51 N. W. 340.)</p>

Hon. James Spencer, Judge.' Order issued out of this court lor respondent to show cause why an appeal should not be reinstated and a former order dismissing the appeal vacated. Upon the return of the order the court refuses to reinstate the appeal. No briefs filed.

Hon. Charles M. Thomas, Judge. Action upon an undertaking given upon an appeal from a judgment in justice court, and alleged to have been assigned, together with the judgment, to the plaintiff. Defendants answer denying the assignment to plaintiff, and alleging that one of the defendants, Jones, was the owner of the judgment, setting up in the answer the manner in which he became the owner. Plaintiff demurred to the answer and the demurrer was sustained. Defendants appeal.

Hon. E. Parliman, Judge. Information, by W. A. Wilkes acting or purporting to act as assistant state’s attorney of Minnehaha county, charging the defendant with a violation of the law prohibititing the sale of intoxicating liquors. There was a trial and verdict of guilty returned. Defendant made a motion in arrest of judgment, which was overruled. Defendant brings error to this court.

Hon. Frank R. Aikens, Judge. Action against the defendant to enforce the payment of money. A verdict was directed for plaintiffs and judgment ■ thereupon entered. Defendant appeals.

Hon. Frank E. Aikens, Judge. Action brought by plaintiff to establish an equitable lien upon certain real estate belonging to the defendnat Annie Baker, to secure the sum of $550.00, which plaintiff alleged was loaned.to both'the defendants, who- were husband and wife. The defendants answered denying that the money was borrowed jointly, but admitting that the defendant George A. Baker had borrowed the sum. Plaintiff had judgment. Defendants appealed.

<p>1. Where the question is as to the true location of a government corner, and whether a certain mound, pits, and staled, testified to by witnesses, were the original marks of such corner, it is not error to admit evidence to show that such marks were years before, when they very plain and distinct, generally regarded and recognized as indicating the original government corner; and to that end it may be shown that permanent improvements, as lines of trees, roads, buildings, public and private, were, when such indications were plain and visible, located with reference thereto as the true government corner, by persons who had no other interest than to locate them correctly.</p> <p>2. Where a written document or paper is offered in evidence, and its exclusion assigned as error, such rejected writing should be printed in the abstract, or its contents, or the facts upon which its competency depends, so particularly described as to fully inform this court of all the material facts upon which the trial court made its ruling. Otherwise no error is shown, and the ruling of the court below will be presumed to be correct.</p> <p>8. It is not error for the trial court to withhold from the jury confessedly good law, when the same is not applicable to the questions before the jury on the evidence in the case.</p> <p>4. The survey of the county surveyor, which under Section 689 et seq., Comp. Laws, carries the presumption of correctness, is the survey made, authenticated, and recorded as therein provided. Parol evidence of the acts of such surveyor does not take, the place of his official report, nor support the same presumption.</p> <p>5. If the original corners, as established by the government surveyors, can be found, or the places where they were Originally so established can be definitely so determined, such location must control, without regard to whether they were located with mathematical correctness or not.</p> <p>6. In determining whether the landlord or tenant, or both, may recover damages for injury to real estate, the general rule applies that wherever a leg-al right is violated the owner of such right is entitled to action therefor. If possession only is disturbed, the owner of the right of possession may have his action. If the freehold itself, independent of and beyond its use and enjoyment by the tenant, is injured, the owner of the freehold, in like manner, has his action.</p> <p>7. In this state the owner of real estate in the actual possession of a tenant may maintain an action for permanent injury thereto.</p> <p>8. When defendant planted a fence across a portion of plaintiff’s farm, thus cutting it off and attaching it to and enclosing it as a part of this (defendant’s) farm, claiming- and taking- possession of the same as his own, thus initiating a possession adverse to the plaintiff, which, unresisted, would ripen into a prescriptive title, the plaintiff may, although the premises are in the actual possession of a tenant for a definite term, maintain an action for injury to the estate.</p> <p>9. In such case il is not required that the complaint shall state .explicitly that plaintiff’s interest is that oí a reversioner, or that the injury complained of is to such reversionary interest, where it does state that plaintiff is the absolute owner in fee of the land, and also shows an injury which must necessarily affect the estate itself.</p> <p>(Syllabus by the Court.</p>

. Hon. J. O. Andrews, Judge. Action by E. H. Ulrick against the Dakota Loan and Trust Company for damages to plaintiff’s building, caused by defendant excavating and removing the earth from the lot adjoining the lot on which plaintiff’s building stood, which plaintiff alleged was done wrongfully and negligently and without notice to him, thereby causing his building and the stone walls thereunder to sink an'd give way, racking and displacing the entire interior structure of…

. Hon. Frank R. Aikens, Judge. Action by Charles Cosand to recover $850 from Lydia Bunker for the surrender of certain leased premises and sale of an interest in personal property. Plaintiff had judgment. Defendant appeals. The facts are fully stated in the opinion.

Hon D. Haney, Judge. Action by Caroline B. Kent against Dakota Fire and Marine Insurance Company to recover on an insurance policy. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. Without an order of reference the referee had no jurisdiction to hear the evidence, find the facts therefrom and conclusions of law thereon, or report the same. §§ 1 and 2, Chap. 112, Laws of 1889; Litchfield v. Burwell, et al., 5 How.

. Hon J. O. Andrews, Judge. Action for damages for the unlawful conversion of personal property. Defendants answered denying generally and setting up facts claimed by them to constitute a justification. Judgment for plaintiff. Defendants appeal. The facts are 'fully stated in the opinion. If a party, having the right to repudiate or affirm a transaction, affirms it, he cannot afterwards resort to his right of repudiation.

C. Taylor, as state auditor of South Dakota, to compel the issuance of a certificate of authority. No briefs filed. The facts are fully stated in the opinion.

Hon. James Spencer, Judge. This case was first argued at the April, 1890, term of this court. The opinion thereon is published in 1 S. D. 279. This opinion is upon a rehearing. The former opinion is adhered to.

Hon. Chas. M. Thomas, Judge. Action to recover the possession of certain real estate; damages for withholding same and for rents and profits. Defendant answered denying generally, and setting up counter-claim. From the judgment entered in the trial court both parties appeal. The facts are fully stated in the opinion. The title and right of possession of real property sold at execution sale, remains in the judgment debtor until the sale is consumated by sheriff’s deed. Comp.

<p>Appeal from circuit court, Grant county. Hon, J. 0. Andrews, Judge.</p> <p>Motion to dismiss appeal allowed.</p>

Hon. D. Haney, Judge. Action on fire insurance policy. Judgment for defendant. Motion for new trial made and granted. Defendant appeals from that order. The facts are fully stated in the opinion. Where the evidence is manifestly and palpably in favor of the verdict, an order granting a new trial for insufficiency of evidence will be reversed. Hicks v. Stone, 13 Minn. 434.

<p>Appeal from circuit court, Kingsbury county. Hon. J. O. Andrews, Judge.</p> <p>Motion to dismiss appeal.</p>

Hon. Frank R. Aikens, Judge. Action by the St. Paul Harvester Company against Sivert P. Forbreg on a note. Judgment for plaintiff by default. On defendant’s motion, the judgment was set aside, and from the order based on such motion plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Minnehaha county. Hon. Frank R. Aikens, Judge.</p> <p>Motion to dismiss appeal.</p>

<p>1. The rules of this court and the statute allow the hearing of an order to show cause why an appeal shopld not be dismissed, at any time which may be fixed, in the discretion of the court.</p> <p>2. Proceedings in the name of the state may be instituted and prosecuted under the provisions of the “common nuisance” clauses of what is generally known as the “Prohibition Law” of 1890, by the attorney general, his assistant, state’s attorney, or by any citizen of the county where such nuisance exists, or is kept or maintained, to abate and perpetually enjoin the same.</p> <p>3. This action having been commenced and prosecuted by a “citizen of the county,” who appeared both as prosecutor and attorney for the state, and the appeal having been taken to this court by service of notice of appeal upon such citizen as such attorney, it is competent fo” him, as such attorney, to appear in this court, ond move to dismiss such appeal, in the absence of any appearance by the attorney general.</p> <p>4. The clerk of the court below is not required to transmit the record of a case after appeal is taken until his fees and other necessary expenses in the case have been paid by appellant or other persons interested in prosecuting the. appeal.</p> <p>(Syllabus by the Court.</p>

Original action by the Synod, of Dakota against the State of South Dakota to recover for the tuition and instruction of certain students. The case was presented to the court upon the complaint and answer and a stipulation as to the facts. Judgment for the defendant. No briefs filed. The facts are stated in the opinion.

Hon. Chas. M. Thomas, Judge. This case was first argued at the April, 1890, term of this court, and in an opinion published in 1 S. D, 497, the court affirmed the judgment rendered by the trial court and reversed the order of that court continuing the attachment. Upon petition of appellant's attorneys a rehearing was ordered March 18, 1891. This opinion is upon the rehearing.

Hon. E. P arriman, Judge. Criminal proceedings charging defendant with the offense of keeping intoxicating liquors for sale as a beverage. Verdict of guilty and judgment thereupon entered. Defendant brings error to this court. The facts are fully stated in the opinion. The provisions of §§ 7241-9, Comp. Laws, are mandatory. An information should be entitled in some court having authority to receive it.

Hon. Frank R. Aikens, Judge. Action for conversion of personal property and damages. Defendant moves for an order removing the case to U. S. circuit court. Motion denied. Defendant appeals. The facts are stated in the opinion. Receivers of national banks are officers of the United States, and as such may sue in the federal courts in the district in which the bank of which he is receiver is located.

Hon. Chas. M. Thomas, Judge. From the judgment rendered in this case both parties appealed. In an opinion infra — 2 S. D. 334, this court decided the questions of error assigned by the plaintiff. This decision is founded upon those assigned by the defendant. But one set of briefs were filed by counsel, which have been noticed in connection with the former opinion.

Hon. John E. Oakland, Judge. This case was first argued at the October, 1890, term of this court. The opinion thereon is published in 1 S. D. 434. This opinion is upon • a rehearing ordered March 19, 1891. Former opinion referred to.

Hon D. Haney, Judge. Action to enjoin and restrain defendant from moving a school building. Plaintiff had judgment. Defendant appealed. The facts are fully stated in the opinion. Plaintiff cannot maintain this action for the reason that the facts show that he has no interest in the action, which is not in common with all resident free holders, tax payers and patrons of this sub-district.

Hon. A. W. Campbell, Judge. Action to recover damages for injuries received while in the employ of defendant. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. The court could either set aside a finding contrary to the undisputed evidence, or find the fact for itself in favor of the defendant. Gammons v. Abram, 53 Wis. 323; Schweickhart v. Stuewe, 75 Wis. 157; Stringham v. Cook, 75 Wis. 589. Negligence is not to be presumed.

Hon. Chas. M. Thomas, Judge: Action in justice court for balance due upon an account for goods sold. Judgment for plaintiff. Defendant appealed to district court, where plaintiff had judgment. Defendant ap- pealed to this court. The facts are stated in the opinion. Justices of peace only have civil jurisdiction where the sum claimed does not exceed one hundred dollars. § 6042 Comp. Laws; Ball v. Biggan, 23 Pac. 565; Wagstaffv.

<p>Appeal from circuit court, Day county. Hon. A. W. Campbell, Judge.</p> <p>Action to recover money had and received. Defend ant de-</p> <p>murred. Overruled. Defendant appeals.</p> <p>The facts are fully stated in the opinion.</p> <p>Matters of substance must be directly alleged independent of an attempt to incorporate them in a pleading by way of reference to exhibits or otherwise. Taylor v. Blake, 11 Minn. 256; Dickinson v. Cole, 34 Wis. 621; Coolbaugh v. Roemer, 30 Minn. 424; Larimore v. Wells, 29 Ohio St. 13; City v. Signoret, 50 Cal. 298; Bowling v. McFarland, 38 Mo. 464. Plaintiffs should have alleged the making of the mortgage by the owner of the premises, the power of sale therein, the name of the mortgagee, a default, a proper notice by mortgagee, and sale by the sheriff pursuant to the terms of the mortgage. Pinney v. Fridley, 9 Minn. 34; Greegs v. City, Id. 246.</p> <p>It is presumed that the sheriff performed his duty. Lawson’s Presump. Ev. p. 53, rule 14; Gwynne’s Sher. 475; 2 O. S. 241; 14 O. S. 240; 21 Pick. 187; 4 O. S. 112. The affidavit of sale is conclusively presumed to state the truth. Freeman on Ex. § 366; State v. Penner, 27 Minn. 269. There being a surplus on the sale and a refusal to pay it over to plaintiff there is a prima facie case against defendant. § 5424, Comp. Laws. If the complaint was indefinite, remedy was by motion. § 4925, Comp. Laws; Bliss Code Pl. § 425; Bethel v. Woodsworth; 11 O. S. 893. Mere surplusage does not affect substantial allegations. Work’s Pr., § 372; Bates’ Pl. Par. & P. 695. If the fundamental facts appear by t-iie complaint, lameness or looseness of the pleader is not reached by demurrer. Everett v. Waymire, 30 O. S. 308; Simpson v. Prather, 5 Ore. 86; Trustees of School Sec. 16 v. Odlin, 8 O. S. 293; Bank v. Bell, 14 O. S. 200; Bates Pl. P. & F. 963;' Morse v. Gilman, 16 Wis. 531; 1 Work’s Pr. § 351; Olcott v. Carroll, 39 N. Y. 436; Pomeroy’s Rem. & Remed. R. § 5488; Work’s Pr. § 491; Maera v. Holbrook 20 O. S. 137; Stephen’s Pl. 140.</p> <p>Allegations of a pleading should be liberally construed. Hazleton v. Bank, 32 Wis. 34; Foster v. Elliott, 1 Bates Pl. P. & F. 191; Dickenslieets v. Kaufman, 28 Ind. 251; Shank v. Teeple, 33 la. 189; Gray v. Coon, 23 la. 344; Doolittle v. Green, 32 la. 123. The material facts to be stated in a complaint are those which, under a general denial, the plaintiff must prove to secure a verdict in his favor. Judah v. Trustees, 23 Ind. 275. Language in pleadings will be construed according to its ordinary and popular meaning. Hill v. Supervisors, 10 O. St. 621. A conclusion of law, importing an issuable fact in a pleading, is not demurrable, but subject to motion to make more definite. Bates’ Pl. Par. & F. 131; Bliss Code Pl. § 213; Thompson v. Cook, 21 Iowa, 472; Schrook v. Cleveland, 29 O. St. 499; Dorsey -v. Hall, 7 Neb. 460; Grinde v. Railroad, 42 Iowa, 376; Kendig v. Marble, 55 Iowa, 386. All parts of a pleading will be construed together. Trumble v. Doty, 16 O. St. 118; Devoss v. Gray, 22 O. St. 159.</p>

Hon. Charles M. Thomas, Judge. This case was first argued in this court Peb. 12, 1890. The opinion thereon is published in 1 S. D. 158. Upon petition of respondent’s attorneys a rehearing was ordered by the court. This op inion is upon the rehearing. The former opinion adhered to. No briefs filed.

' Hon. Frank R. Aikens, Judge. Action on written agreement. Judgment for defendants. Plaintiff appeals. The facts are fully stated in the opinion. Whenever a liability, resting upon two or more persons, is created by contract, the presumption is that such liability is joint, Pom. Rem. and Rem. Rights, § 275; 1 Pars. Cont. 11; 1 Addison Cont. 47; §3574 Comp. Laws; McCullis v. Thurston, 27 Vt. 597; Sheppard’s Touchstone, 375; People v. Hartley, 21 Cal. 585.

Hon. A. W. Campbell, Judge. Action in justice court on promissory note. Judgment for plaintiff. Defendant appealed to the circuit court where the appeal was dismissed. Defendant appeals from order dismissing appeal. The facts are fully stated in the opinion. If an order dismissing a case does not disclose the reason for the dismissal, it will be presumed that it was 'upon one or more of the grounds stated in the motion. Kirkpatrick v. Railroad, 33 N. W. 103.

Hon. Thos. M. Goddard, Judge. Action in justice court for work and labor performed. Judgment for defendant. Plaintiffs appealed to county court where plaintiff had judgment. Defendant appeals. The facts are stated in the opinion. No practicing attorney can be a surety upon an undertaking in any suit pending in the courts of this state. § 469, Pol. Code; Shnek v. Hagar, 24 Minn. 341; Cothrenv. Connaughton, 24 Wis. 137; G-ilbankv. Stephenson, 30 Wis. 156.

Hon. E. G. Smith, Judge. Action to recover possession of a stock of goods under a chattel mortgage. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. If it specifically appears that the plaintiff- was the owner and in possession of the property, or entitled to possession, allegation of possession is unnecessary. G-are v. Wayland, 31 N. W. 108; Bank v. Farmer, 40 N. W. 345.

Hon. D. Haney, Judge. Action to enjoin sale of real estate. Judgment for defend- ant. Plaintiff appeals. The facts are stated in the opinion. An answer is not to be treated as a cross-bill or creditor’s bill. Lawrence v. Bank, 35 N. Y. 320. In .charging fraud, specific facts must be alleged showing in what the fraud consists.

Hon. A. W. Campbell, Judge. Action for work and labor performed. Defendant sets up a special contract and its non-performance. Plaintiff replies thafi defendant prevented performance. Judgment for plaintiff. Defendant appeals. Where work and labor is performed under a special contract fixing the price, quantum meruit cannot be sustained.

Hon. D. Haney, Judge. Action on contract. ’ Judgment for defendants. Plaintiff appeals. The facts are fully stated in tbe opinion. Sections 1717, 1700, and 1702 prescribe how a school township may contract. The defendants did not make the township liable by inserting their official character. Such clauses are merely descriptive.

Hon. Chas. M. Thomas, Judge. Action to recover a stock of goods taken by the defendant as a sheriff under attachment proceedings. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. A sale by a failing debtor under circumstances such as should awaken suspicion of his intention to defraud and should put a prudent man .on his inquiry is void, even though purchaser gave a sufficient consideration therefor.

Hon. Chas. M. Thomas, Judge. Action on a promissory note by endorsee against maker. The defendant answering alleged that the note was not transferred to plaintiff for value before maturity, and set up counter claim against the original payee. Judgment for defendant. Plaintiff appeals. The facts are fully stated in the opinion. A deposition intended to be read in evidence on the trial must be filed at least one day before the trial. §§ 5292 and 5297, Comp. Laws.

Hon. Charles M. Thomas, Judge. Mandamus to compel defendant to pay certain interest coupons. Defendant answered, denying validity of the bonds and coupons. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. Mandamus being an extraordinary remedy will not be granted when there is an adequate remedy at law.

Hon. J. O. Andrews, Judge. Criminal action for usury. Defendant found guilty and fined §300. Defendant appeals. The facts are fully stated in the opinion. An indictment cannot be found against a corporation until a presentment has been first made by a grand jury, a summons issued by a justice of the peace, served as provided by law and an examination held before a justice, and certificate made that there is sufficient evidence to believe the corporation guilty of the offense.

Hon. John • W. Nolin, Judge. Action in trespass for damages and injunction. Temporary injunction granted and upon order to show cause made permanent. Defendant appeals. The facts are fully stated in the opinion. This is an appealable order. §§ 4984, 4987, 4989, 4991, 5227, 5228 and 5236, Comp. Laws. Bostwickv. Knight, 40 N. W. 344, should be overruled. An action of trespass or ejectment would afford plaintiff adequate relief, and an injunction should not be granted.

Hon. John W. Nowlin, Judge. Action to quiet title. Judgment for defendants. Plaintiff appeals. The facts are fully stated in the opinion. A title to mineral land, duly diverted from the United States government, becomes property in the fullest sense of the word.

Hon. J. 0. Andrews, Judge. Criminal action for usury. Defendant found guilty and fined. He brings error to this court. The facts are stated in the opinion. The state cannot exercise its criminal jurisprudence or any control except as congress permits over-a creature having its origin from the national will, as evinced by the acts of con gress.

Hon. H. G. Fuller, Judge. Action to foreclose mechanic’s lien. Defendant owner answering alleges full payment to contractor before notice. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. The owner of property is fully protected as to subcontractors through proper notices. §§ 656, 658, 659, 660 and 661, Code Civ. Proc. An amended statute is construed as if it read from the beginning as it does as amended.

<p>Appeal from circuit court, Union county. Hon. D. Haney, Judge. Acting for and at the request of Hon. E. G-. Smith, judge of the First circuit.</p> <p>Proceeding by mandamus to compel the secretary of state of South Dakota to purchase Volume 6 of the Decisions of the Supreme Court of Dakota. Defendant demurred. Judgment for plaintiff. Defendant appeals.</p> <p>The facts are fully stated in. the opinion.</p> <p>Ajipropriations made under the territorial laws were binding on the state and so regarded until the passage of the omnibus appropriation bill of 1891. State v. Hickman, 9 Mont. 370; 23 Pac. 740; State v. Kenney, 26 Pac. 196; Gilbert v. Moody, 25 Pac. 1092.</p>

Hon. Frank R. Aikens, Judge. Action for conversion of personal property. Defendants answered justifying the taking under attachments by sheriff. Judgment for plaintiff. Defendants appeal. Corson, Judge, concurring specially. The facts are fully stated in the opinion. The requirements of §§ 3190 and 3192, Comp. Laws, in regard to foreign corporations doing business in this state are valid.

Hon. Frank R. Aikens, Judge. Action to recover the value of certain personal property. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. A single appeal can be taken from the judgment and order denying a new trial. Fry v. Bennett, 16 How. Pr. 385; Cook v. Co., 18 N. Y. 229; Lavalle v. Skelly, 90 N. Y. 546; Thurber v. Railroad, -60 N. Y. 326; Schmidt v. Cowperthwait, G6 How.

Hon. Frank R. Aikens, Judge. Action on bond. Judgment for defendant. Plaintiff ap- peals. The facts are stated in the opinion. The undertaking set out in full in the complaint was a part of the complaint and contained the promise of the defendants. Murdock v. Brooks, 38 Cal. 596; Heebner v. Townsend, 8 Abb. Pr. 234; Browner v. Davis, 15 Cal. 9; Booske v. Gulf Co., 5 So. 247; Ins. Co. v. Smead, 13 S. E. 332.

Hon. Frank R. Aikens, Judge. Action to enjoin defendants from selling real estate for special assessment tax. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. Laws of 1890, p. 94, §§ 15 and 16 and p. 95, § 18, give the city council power to change and establish the grade of streets. A party cannot avoid a tax wholly because a part is void. Dillon on Mun. Cor. 924; Elliott, Roads and Streets, 386.

Hon. Frank R. Aikens, Judge. Action by Joseph M. Mason against the city of Sioux Falls and George R. Sammons, its treasurer, to enjoin the sale of certain real estate. From a judgment for plaintiff, defendants appeal.