Volume 20 — Utah Reports

'Ogden Hiles, Judge. Action upon a contract. Cause tried before the court without a jury and judgment rendered in favor of plaintiff, from which judgment defendant appeals. The granting or denying a motion for a non-suit when the decision is excepted to raises a question of law, and this court will examine tbe evidence. Reese v. Mining Go. 15 Utah, 453; 49 Pac. Eep. 824.

A. N. Cherry, Judge. Action by plaintiff on an assigned claim against defendant for services rendered. From a judgment for plaintiff defendant appeals. The following cases are in point and clearly demonstrate that the plaintiff claiming under B. T. Pyper, by an assignment made after B. T. Pyper accepted the stock, is estopped from now' asserting against the defendant the claim of B. T. Pyper for compensation for services. ■Smith v. Lusk, 24 So., 256; Smith v. By.

Ogden Hiles, Judge. Action to recover possession of certain notes and contracts, for the appointment of a receiver to collect the same and to obtain a restraining order against defendants preventing their collection of the notes and accounts in their possession. From a judgment for plaintiff defendants appeal.

E. Y. Higgins, Judge. Action by plaintiff to recover an amount alleged to be the reasonable value of work and labor performed for defendant and claimed by plaintiff as overtime because he worked twelve hours a day in the mill and reduction works of defendant, when by the laws of the state, eight hours was a day’s labor in such places. From a judgment for defendant plaintiff appeals.

A. G. Norrell, Judge. March 19, 1898, the prosecuting attorney in Salt Lake County, filed an information against respondent charging him with having committed a crime on the 23d of July, 1895.

Ogden Hiles, Judge. Action by plaintiff against defendant in support of a protest and adverse claim, asking that his title to certain mining ground be quieted and praying for an injunction. From a judgment and decree for plaintiff defendant appeals.

A. N. Cherry, Judge. Application for a writ of mandamus against the city auditor to compel him to draw his warrant for the salary due petitioner and his assignors as policemen of Salt Lake City, from August 1, 1898, up to and including November 25, 1898. From a judgment in favor of plaintiff defendant appeals. STATEMENT OE FACTS.

John A. Street, Judge. Action by plaintiff against defendants upon a written assumption of the contracts of- H. for a gas producer within the limit of $2,000.' From a judgment in favor of plaintiff, defendants appeal. The opinion states the facts. There was a total failure of proof. That this is fatal, see Peay v. Salt Lake City, 11 Utah, 331; Turner v. Insurance Go., 10Utah, 72; NlliotY. Caldwell, (Minn.) 9 L. R. A. 52; Dermatt v. Jones, 23 How. (U. S.) 220.

A. N. Cherry, Judge. Action on an official bond against the principal and sureties to recover damages for the alleged wrongful taking and disposing of certain goods claimed by plaintiffs. From a judgment for plaintiffs defendants appeal. The court erred in sustaining plaintiffs’ objection to the questions asked the witness Winder on cross-examination. Winder was the defendant in the attachment suit. He was the one who was supposed to have made the bill of sale.

Á. N. Cherry, Judge. Proceeding in mandamus to compel the city auditor of Salt Lake City to draw his warrant in favor of the petitioner, for a certain sum of money which he insists is due him and several others who have' assigned‘their claims to him for salaries as firemen of the city. The trial court granted the writ and defendant thereupon appealed.

E. V. Higgins, Judge. Action on a promissory note executed and delivered to the plaintiff by the defendants.

IT. H. Rolapp, Judge. Defendant, an attorney at law, duly licensed by the Supreme Court of the late Territory of Utah, was charged with practicing law in the city of Ogden without a license as required by the ordinance of said city. Action was commenced before a justice of the peace, where defendant was found guilty. Appeal was taken to the District Court where defendant was found not guilty, and plaintiff thereupon appealed to this court.

Ogden Hiles, Judge. Action in ejectment to recover possession of property admitted to be in the possession of defendant. Both parties claim title through a foreclosure proceeding and a mortgage given by John W. Jones and wife to plaintiff. From a judgment and decree for defendant, plaintiff appeals.

<p>Appeal from the Seventh District Court, San Pete County, Hon. Jacob Johnson, Judge.</p> <p>Action in replevin to recover certain sheep, or their value.</p> <p>From a judgment for plaintiff defendant appeals.</p>

Charles H. Hart, Judge. Action in ejectment to recover possession of certain land at the intersection of certain streets in Brigham City. From a verdict and judgment in favor of' defendant, plaintiff appeals.

A. G. Norrel. Judge. Action by Margaret Linden as-administratrix to recover damages for the death of her husband, who was fatally injured while in the employ of defendant company. From a judgment-for defendant, plaintiff appeals. It is the master’s duty to exercise reasonable care to provide his servant a reasonably safe place in which to work, the performance of this duty cannot be effected by the simple giving of an order — by its execution being entrusted to another..

H. H. Rolapp, Judge. Action to foreclose a mortgage and for a deficiency judgment against B. who purchased the mortgaged property subject to the mortgage. From a judgment for plaintiff, B. appealed. “The assumption of the payment of a mortgage by a grantee of the mortgaged premises does not bind him for a deficiency if his immediate grantor was not liable to the holder of the mortgage. King v. Sullivan, 31 App.

Jacob Johnson, Judge. Action of forcible entry and detainer under the statute, for a restitution of certain premises and for damages. A motion to strike out and a demurrer-to the complaint were sustained and the plaintiff failing to amend, a judgment of dismissal was entered. From that judgment plaintiff appealed.

H. H. Rolapp, Judge. Application for a writ of mandate to compel the mayor and city council of Ogden City to make an appropriation out of the funds belonging to the city, for the purpose of paying a certain sum, which relator claims is due him on account of salary as captain of police. From a judgment ordering the issuance of the writ, defendants appealed.

H. H. Eolapp, Judge. Action by plaintiff as administratrix to recover damages for the death of Joseph S. Pool, alleged to have been caused by the negligence of defendant. Defendant’s motion for a non-suit was denied and a verdict and judgment for plaintiff rendered. Defendant appealed.

H. H. Rolapp, Judge. Action by plaintiff to recover a certain sum which he claims to be due as a part of his salary as city justice of the peace of Ogden City. From a judgment for defendant plaintiff appeals. Chapter LXIX, page 261, laws of 1897. Section 2481, R. S. 1898. Revised statutes, section 205, relating to ordinances.

H. H. Rolapp, Judge. Action by plaintiff to recover a balance upon a contract for the purchase price of a heater sold to defendant. The defendant denied the allegations of the complaint; denied that plaintiff performed his contract, and denied the indebtedness and by way of cross complaint alleged the violation of the contract by the plaintiff, and claimed damages for the breach and non-compliance therewith. From a 'judgment for defendant plaintiff appeals.

Ogden Hiles, Judge. Action by plaintiff as receiver of the Park City Bank against defendant as administratrix, alleging the liability of her decedent as… Held: Carey v. Williams, 25 C. C. A. 227, 79 Fed. E. 906. The following cases treat various phases of this case, and are cited here as authorities upon the remedy here invoked, as well upon the right of plaintiff to sue at all, and as to the necessary parties. McLaughlin v. O’Neill, 51 Pac. E. 244; Pollard v. Bailey, 87 IT.

H. H. Rolapp, Judge. Action by plaintiff for a decree directing the sale of certain real estate described in a deed of trust executed by the defendant South Ogden Land, Building & Improvement Company, as security for the reimbursement of any sum which the other defendants might be obliged to pay on certain accommodations described in said deed of trust, which deed, together with the claim of defendant Sidney Stevens, had been assigned to this plaintiff.

W. N. Dusenberry, Judge. Plaintiff was charged with the crime of fornication. From a verdict of guilty and a judgment thereon defendant appeals.

A. G. Norrell, Judge. Creditors’ bill by plaintiff to set aside and adjudge to be void as to plaintiff a general assignment madei by the Park City bank for the benefit of its creditors and to declare a certain judgment held by plaintiff against the bank to be a first lien upon certain real property included in the assignment. From a judgment for defendants, plaintiff appeals.

E. V. Higgins, Judge. Action by plaintiff to quiet title to waters of certain streams and springs and to enjoin and restrain defendant from interfering with any of said waters.

H. H. Rolapp, Judge. Application by plaintiff for a writ of mandamus to enforce payment for services alleged to have been performed by himself and another as patrolmen of police in Ogden city. From a judgment denying the writ plaintiff appeals.

<p>Appeal from the Fourth District Court, Wasatch County, Hon. J. E. Booth, Judge.</p>

Ogden Hiles, Judge. Action to recover a certain sum on an assigned claim alleged as preferred before certain other indebtedness. From a judgment for defendants, plaintiff appealed.

H. H. Rolapp, Judge. Action to recover an amount claimed to be due plaintiff for work and labor on mining property and a smelter in connection therewith, and to foreclose a mechanics’ lien on said mines and smelter. From a judgment and decree for plaintiff, defendant appealed. The requirement that the claim or notice must contain the terms, time given and conditions of the contract is imperative. Phillips on Mech. Liens, p. 577, Sec. 350.

A. N. Cherry, Judge. Action by plaintiff to recover damages for personal injuries. Action commenced before a justice of the peace elected for the first precinct of Salt Lake City and judgment for plaintiff. Defendant appeals and moves to dismiss the action because the justice of the peace held his court and tried the action in the fifth precinct of Salt Lake City, whereas he was elected for the first precinct of said city.

Hon. A. N. Cherry, Judge. Action to recover money obtained on a certificate of deposit and for the cancellation of a certain note or the value thereof. From a judgment for plaintiff, defendant appealed. The court erred in permitting the plaintiffs to testify to what the Studebakers told them relating to the title to the wagons. This was hearsay. McClure v. SheeJc, 4 S. W. 554; 68 Texas 426.

H. H. Eolapp, Judge. Action by plaintiff to quiet title of certain mining claims in Davis county to which it was alleged that defendant wrongfully asserted and claimed some right. From a judgment for defendant, plaintiff appealed.

A. N. Cherry, Judge. Action on a promissory note. Judgment was rendered for plaintiff on the pleadings. From this judgment defendant appealed, alleging error in the refusal of the trial court to allow him to withdraw his demurrer and general appearance in the case for the purpose of objecting to the regularity of the summons. There is no special connection between payment of the clerk’s fees and the filing of the complaint or issuance of the summons.

A. G. Norrell, Judge. Appellant was charged by the information with and on the trial was convicted of the crime of rape. From a judgment of imprisonment entered on the verdict, defendant appealed.

Ogden Hiles, Judge. Action by plaintiff to restrain the Mayor and City Council of Salt Lake City, City Engineer and Superintendent of Water Works, under the order of the city council, from constructing improvements to the city water works system and from constructing a bridge across the Jordan river. From a judgment for plaintiff, defendant appealed.

A. N. Cherry, Judge. Action by plaintiff to recover for injuries sustained by his wife while she was a passenger on a street car of the defendant company. From a judgment for defendant, plaintiff appealed. On degree of care required of common carrier appellant cited: Story on Bailments (8th Ed.) Sec. 601; Shearman and Redfield on Negligence (2d Ed.) Sec. 266; Jamison v. Ry. Co., 55 Cal. 593; liegeman v. Ry.

W. N. Dusenberry, Judge. Action by plaintiff to recover damages for the wrongful and negligent killing of a cow by one of defendant’s trains. From a judgment for plaintiff, defendant appealed. The appellant contends that under the state of facts shown by the testimony, the plaintiff cannot recover, because it appears that the accident was caused entirely by his own negligence, in turning his cow out upon the highway upon which a railroad track was known to run, unattended.

J. E. Booth, Judge. Action by plaintiff to restrain defendant Murdock, as sheriff, defendants Nicol and Hatch, his bondsmen, and defendants Clyde and A. M. Murdock, as execution plaintiffs, from selling and disposing of certain real and personal property levied on by a writ of execution. From a judgment for defendants, plaintiff appealed. The purpose is manifest in this assignment; taken as a whole, to convey all the assignors’ property, individual and partnership.

J. E. Booth, Judge. This case involves practically the same questions as the next preceding case, excepting that one additional question in respect to certain water stock is herein raised. In the lower court defendant had judgment and plaintiff appealed. We submit that the water rights levied upon were appurtenant to the land, and if land passed by the assignment, the water right passed with it. R. S. Utah, 1898, Sec. 1381; Comp.

C. H. Hart, Judge. ■ Action by plaintiff to recover a certain sum claimed to be due on account of a loan made by plaintiff’s predecessor to defendant and to foreclose a mortgage and lien on certain… Held: “(1) That the appointment of a receiver terminates the contract with the mortgagor as originally contemplated; (2) That, the mortgagor, who is also a shareholder, is not liable for monthly dues accruing after the appointment of a receiver.

Ogden Hiles, Judge. Action by one Jones to foreclose a mechanic’s lien. Morrison, Merrill & Co. filed a cross-complaint. From a judgment in favor of said cross-complainants defendant appealed. Where a statute is like ours, subjecting property to a lien, only where the contract has been made with the owner or with the agent of the owner, the wife’s property is not subject to a lien upon a contract made with the husband.

A. N. Cherry, Judge. Action upon account for goods, sold and delivered. Defendant cross complained and alleged damages by reason of the failure and neglect of plaintiff to ship and deliver the goods in accordance with the terms of purchase.

Original application in this court for writ of mandat© to compel the State Auditor to draw his warrant for $5,000 to be expended by plaintiff under Chapter 5 of the Laws of 1899.

Ogden Hiles, Judge. Action by the successor in interest of a mortgagor to compel an accounting and disclosure of profits from the purchaser of the mortgaged premises at the foreclosure sale made to satisfy said mortgage and for redemption of the premises therefrom. From a judgment and order for an accounting and that upon settlement of the account between the parties upon payment of the balance due, plaintiff may redeem, plaintiff appealed.

A. N. Cherry, Judge. Action to recover three thousand dollars and interest, alleged to be due upon a contract. From a judgment for plaintiff, defendant appealed. A corporation is distinct from its stockholders, and although one person may own all the stock, he cannot, as such stockholder, act for the corporation. Cook on Stockholders, (2d ed.) Sec. 709.