Volume 2 — Wyoming Reports

The action was brought in the district court of Laramie County, at its March term, 1870, by Daniel McLaughlin, endorsee of a bill of exchange for one thousand dollars, drawn by Daniel Ullman in favor of E. W. Whitcomb and accepted by Joseph Yenine; the bill afterwards passed into the hands of Posey S. Wilson, for negotiation, who made an alteration in the body of the instrument by inserting the words, “ or bearer.” The case was tried in the district court without a jury, and…

The case was submitted to the court below upon the following agreed statement of facts: “ It is hereby agreed and stipulated by and between the parties plaintiff and defendant hereto, that said cause shall be heard, tried and determined by the court without the intervention of a jury, upon the following agreed statement of facts; it being agreed further between the parties hereto, that the following are the facts and all the facts of this case: This action is brought to…

Motion to dismiss the writ of error upon the following grounds, 1st, because no motion for a new trial was filed in the court below as required by law; 2d, because the errors complained of in the petition in error, were not first presented to the court below by a motion for a new trial in compliance with law and the rules governing the practice of this court.

The plaintiff in error was a subscriber to ten shares of the capital stock of the Great Western Insurance Company, of Chicago, Illinois, upon which he had paid twenty per cent. The original suit was brought by the assignee to recover the amount unpaid on the par value of the stock.

Ebjrou to the District Court of Laramie County. The same questions arise, the same decison was rendered by the court, and for the same reasons, as stated in the preceding case of McLaughlin v. Upton, assignee.

This action was commenced before John Slaughter, a justice of the peace, in and for Laramie County, on ail account for services rendered, by W. P. Carroll as attorney. Judgment was rendered in favor of Emery, the assignee of Carroll’s claim, for one hundred dollars and costs, whereupon plaintiff in error appealed to the district court.

The facts are stated in the opinion. It seems to have been admitted, and at any rate it is a sound proposition of law, that the vendee of personal property may stipulate that the title to the property shall remain in the vendor until the performance of certain conditions, although the vendee takes possession of the property.

The facts are stated in the opinion. The three orders sued on in this case were partly paid by the defendant, who had funds in its possession to pay the balance, and the orders themselves were marked or stamjoed paid by the defendant’s stamp, and retained by the defendant.

The action in the court below was instituted by Wesley B. Bonnifield, the plaintiff, to recover of George F. Price, the defendant, a sum of money alleged to be due upon a decree and judgment of the district court of the 9th judicial district of the state of California. The defendant answered: First. — A general denial. Second. — That the action was barred by the laws of California.

The facts are stated in the opinion. The record of the case presents the singular fact, that the court attempted to try the case there without any pleadings, or in other words, without any issue. Section 261 of the Code tells us what an issue is, and the following section, 262, tells what a trial is. Prom these sections of the law, it is evident there can be no issue without pleadings, and there can be no trial without an issue.

Ebbob to tbe District Court of Laramie County This case was originally commenced by petition of the Union Pacific Railroad Company, defendant in error, filed in tbe district court of tbe second judicial district of Wyoming Territory, Albany county, on tbe 28th day of September, 1875, praying judgment against Fillmore, plaintiff in error, on account of freight, rent, etc., for tbe sum of $583.59 and interest thereon from November 1st, 1872, at 12 per cent, per annum.

Tbe action in tbe court below was instituted by tbe defendant in error, to recover of tbe plaintiff in error an amount alleged to be due for timber, lumber, etc., delivered by the defendant in error to tbe plaintiff in error. Tbe defendant below demurred to tbe petition, wbicb was overruled and an exception taken. Tbe defendant then answered: First, a general denial. Second, failure of title of tbe plaintiff below to tbe property alleged to bave been sold to tbe defendant.

On the 30th day of December, 1875, the defendant in error filed bis petition against the plaintiff in error, in the district court of Albany county, Wyoming Territory, to recover the sum of $590.83 for goods, wares and merchandise before that time sold and delivered.

Ekrob. to the District Court of Albany County. The action was commenced by Davis in the district court of Albany county, at its May term, 1876, against Fein on account for work and labor done and materials furnished, for the sum of $165.50 with interest tbereon from September 7th, 1875, at the rate of 12 per cent, per annum; and for the enforcement of a mechanics’ lien against certain buildings described in the petition as follows: “ A certain dwelling house of said…

Beaucaire and Sawyer formed a partnership on or about December 1st 1874, to engage in the barber and photograph business in Cheyenne: they contributed equally to the partnership fund and the profits were «to be equally divided.

The facts are stated in the opinion. Plaintiff denies tbe validity of the act of tbe legislature, as being unequal, discriminating and partial. Cooley’s Const. Lim., page 389-397. Tbe fees allowed county officers are necessarily collected from tbe people in tbe way of taxes, and tbe result is unequal taxation in tbe various counties, necessarily following the unequal and unjust discrimination. Cooley’s Const. Lim., 501-2; Cooley on Taxation, 124 to 174.

Ebboe to the District Court of Laramie County The plaintiff in error in his official capacity as sheriff levied upon the property in controversy, by virtue of an execution against J. D. Brasel at the suit of one Sanford, and, as the property of Brasel, defendant in error replevined the property, basing his claim to it upon, the ground: 1 — That he was a mortgagee of the property. 2 — That he was in possession under a verbal agreement, the effect of which possession and…

This case was commenced by Alsop to recover a balance alleged to be due on a promissory note for $575, given by Farrell to Alsop, November IS. 1874. Farrell denied indebtedness on the note and pleaded a set-off of $700, on account. The reply denied liability on some of the items in toto, and claimed payment of the others in a settlement, of which the note sued on was the result.

<p>Pkactice : Writ of Error : Return. — 1The Supreme Court will permit delays in tbe return of the writ of error, for the purpose of securing to the plaintiff his appeal, bringing up the record, and disposing of the case according to the rights of the parties; but this permission is extended only, where it perceives no intention on his part to abuse the process; when, therefore, it discovers that intention, its duty is tlie reverse. Tlie writ of error, as a writ of right, is limited by this condition, and the court should impose the limit. Its power for the purpose is inherent.</p>

The facts are stated in the opinion. Judgment creditors stand i-n a position to dispute the validity of the assignment, and call upon the equity arm of the court for the interference with the assignment sought, and the relief prayed for by them.

This was an action of replevin instituted in the district court, of the second judicial district of the Territory of Wyoming, within and for the county of Carbon, by the United States of America, then plaintiff, to recover from the Union Pacific Railroad Company, then defendant, a lot of Indian supplies -which had been transported by the defendant as a common carrier, and upon which the defendant claimed a right of lien for its services.

<p>Practice: Rules of Court: Bill of Exceptions. — Section 4, chapter 106 of the Compiled Laws makes it the duty of the supreme court to prescribe rules of practice, and such rules, when not in conflict with the Organic Act or the laws of the Territory are given all the force of statute law. Therefore Rule 6 of this court, which provides, that, “ no case will be heard in court unless a motion for a new trial shall have been made in the court below in which all matters of error and exceptions have been presented, argued and the motion overruled and exceptions taken to the overruling of said motion, all to he embraced in the bill of exceptions,” is in the very line of the court’s duty to prescribe, and was not intended to work an injury, but to point out in practice, what would be required of all who come into this court seeking to set aside decrees or judgments of the court below.</p> <p>Stenographer’s Notes. — The act of December 15, ESTT, in relation to the appointment of a territorial stenographer, which provides, that a transcript of his notes shall be prima facie evidence of the proceedings does not mean absolute, and does not affect section 303 of the Civil Code requiring a certified and absolutely true statement of the evidence to be taken up in all proceedings in error.</p>

William Hinton commenced this proceeding by filing a bill in the district court of Uinta county, March 15, 1875, to foreclose a mortgage on an undivided two-thirds of the N.J, of the N. W.!, and the N. W& of the N. E& of S. 8, P. 15, west of range 120, which mortgage was given by S. H. Winsor, owner of the property, to William Hinton, to secure the payment of $2,145.

<p>Summoks: Pbesumptioh of Service. — This court cannot presume, in any case, that a summons was duly issued and served, unless the record affirmatively shows these facts.</p>

The defendants in error on the 27th day of February 1878, commenced an action against the plaintiff in error and one A. H. Davis, by filing a petition and causing summons to be issued, which was served upon each of the defendants personally, on the 27th day of February 1878, requiring them to answer on the 30th day of March, 1878. On the 1st day of July, 1878, the plaintiff in error filed a demurrer to the jurisdiction of the court.

The action was brought by Lewis Bros, of San Francisco, to recover from Jane Granger a sum of money claimed to be due for certain cigars sold and delivered to her at her request. The answer was a general denial, and also set up that the plaintiff in error was a married woman. The jury rendered a verdict for the plaintiff below. The first assignment of error complains that the verdict and judgment was not sustained by sufficient evidence.

In the court below judgment was rendered in favor of the defendant in error, on the 15th day of July, 1878, and the motion for a new trial was overruled on July 80th, 1878. The precipe for writ of error was filed in the supreme court on the 30th of July, 1879, and a writ of error issued on the same date. The writ of error, together with a transcript of the record, was returned on the 15th of August, 1879.

On the 2d of December 1878, H. Garbanati, the plaintiff in error, presented a bill to the board of county commissioners of Uinta county for if935, for fees as county and prosecuting attorney for Uinta countjn The board disallowed the bill and Garbanati appealed to the district court, where the case was tried on the 11th of January 1879, and a judgment rendered for the defendant, the board of county commissioners.

The origin of this case was a bill presented against said Sweetwater county on the 6th day of May, 1879, .by defendant in error, which was as follows: “ The county of Sweetwater, Wyo. Ter., Dr. To W. A. Johnson, Sheriff in and for Sweet-water County, Wyoming Territory, to services of Frank Shulter as jailer for the months of January, February and March, 1879, at 190.00 per month, $270.00.

This action was brought by Henry Garbanati against William Hinton and Michael Quealey, late co-partners, before C. E. Castle, a justice of the peace in and for said county of Uinta, to recover the sum of $55, alleged to be due for legal services rendered by the plaintiff for the defendants at their special instance and request.

ERROR, to the District Court of Laramie County. The plaintiff in error was indicted in the district court on the 16th day of November A. d. 1877; the indictment contained two counts and was in the following language: “ United States oe America, \ Territory oe Wyoming, \ ss. 1st Judicial District, ) At a term of the district court for the first judicial district of the territory of Wyoming, exercising the jurisdiction of the circuit and district courts of the United States,…

This was an action brought for the recovery of real property in the district court of Uinta county. Plaintiff claims under a deed dated October 26th, 1875, but the acknowledgment and recording was not until November 15th, 1875, so that for the purposes of this controversy the date, of the deed is November 15th.

<p>Error to the District Court of Uinta County.</p> <p>The facts are stated in the opinion.</p>

This case comes from the district court of Albany county; the case was tried at the February, 1880 term, at Laramie City, in said county.' Andrew Nelson, the defendant in error, was regularly indicted by the grand jury of said county, for the crime of “ knowingly killing neat cattle not his own,” was regularly tried on said indictment, found guilty by'the jury and his term of imprisonment in the penitentiary at six months.

The facts are stated in the opinion delivered in the district court, by Peck, «J. After the plaintiffs counsel had announced their case as closed, the court suggested an absence of certain proof, and allowed them to proceed with further testimony in their opening, under the objection of defendant. This may be a right within the discretion of the court, and it may be argued that no matter within the discretion of the court will be reviewed by an appellate court.

<p>Error to the District Court of Uinta County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The appellant, the City of Cheyenne, claims the right to assess for the purposes of municipal taxation the property of the complainant, situated within its corporate limits, whether it be located upon the company’s right of way or not, in the same manner as other property of the city is assessed, by virtue of the provisions of its charter, which gives it power to “levy and collect taxes for general revenue purposes not exceeding six mills…

<p>ERROR to the District Court of Laramie County.</p> <p>This was a motion by the surety upon a supersedeas bond, for leave to appear and prosecute the petition in error.</p>

<p>Error to 'the District Court of Laramie County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. If it should be held, that the plaintiff could recover under her petition for the occupancy of the… Held: that the plaintiff could recover under her petition for the occupancy of the twelfth month, provided the defendant held over after the last month began; even then the evidence of N. J. O’Brien shows that the leasing was from April 5th, 1877, to April 5th, 1878, and that the keys of the storeroom were delivered on the 5th day of…

<p>Bile oe Exceptions. — The plaintiff in error must present his bill of exceptions to the court for allowance, not to a judge out of court, and on a day not beyond the first day of the next succeeding term.</p>

<p>Error to the District Court of Uinta County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The court erred in undertaking to render a final judgment on the merits upon the defendant’s motion for a dismissal. Freeman on Judgments, secs. 261, 262; Homer v. Brown, 16 How., 354; Bridge v. Sumner, 1 Pick., 371; Morgan y. Bliss, 2 Mass., 113; Berly v. Jacques, 1 Clifford, 425; Knox v. Waldoborough, 5 Me., 185; Howes y. Austin, 35 Ills., 396; Hollard v. Hatch, 15 Ohio, sec. 464.

The facts are stated in the opinion. A judgment of non-súit is a judgment dismissing the action. The Code of Civil Procedure provides under what circumstances a case at law may be dismissed, and further provides that in “ all other cases, upon a trial of the action, the decision must be upon the merits.” This case was not one of those that can be dismissed by the court.

The facts are stated in the opinion. No assessment of the property of the complainant in said school district was ever made for the year 1879. See Compiled Laws, page 527, sec. 7; Session Laws of 1878, page 117, secs. 1, 2, 8, 7 and 9. ■ The assessment is the foundation of the right to levy and collect taxes, and without an assessment there is no power to levy and collect taxes. Thayer v. Stearns, 1 Pickering, 482; Miller v. Male, 26 Pa.

The facts are stated in the opinion. The court erred in overruling the motion of the defendant for a new trial. The verdict being clearly against the Aveight of evidence it was the duty of the judge to grant a new trial. 3 Graham and Waterman on New Trials, pages 1207-8; Hilliard on New Trials, page 336, see..l, and page 358, sec. 44.