Volume 20 — Wyoming Reports

Charges E. Carpenter, Judge. The material facts are stated in the opinion. Plaintiff failed to show sufficient title to his land to authorize a recovery, all that was shown being his occupancy of the tract in question. The plaintiff also failed to establish any right of way for a ditch or that he had any appropriation of water.

Prror -to the District Court, Sheridan County; HoN. Carroll PI. ParmeleE, Judge. The material facts are stated in the opinion. The probate law of Montana and Wyoming having been taken from California the decisions of the Supreme Court of that state are peculiarly applicable to probate proceedings in the courts of Montana and Wyoming. The questions raised in this case, it is believed, have been definitely and finally settled by the Supreme Court of California.

Carroll H. Parmelee, Judge. The material facts are stated in the opinions. At the time of the commencement of the trial the value of the interest of the ward, in whose behalf the suit was brought, in the property alleged to have been converted by the guardian was alleged to be $1600. Since the trial was commenced, so far as plaintiff in error is able to ascertain, that amount was changed in the petition to $3000.

<p>Criminal Law — Baii^Capitae Offense.</p> <p>1. Applying the provision of the Constitution that “all persons, shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great,” the rule laid down in State v. Crocker, S Wyo. 385, is approved and followed as the correct rule, viz: that, upon an application for bail where the accused is charged with murder in the first degree, a capital offense, bail should be refused where the judge would sustain a conviction for murder in the first degree if pronounced by a jury on such evidence of guilt as is exhibited on the hearing for bail, and where the evidence is of less efficacy the accused should be a'dmited to bail.</p> <p>2. Upon the evidence submitted upon an application for bail, the accused being charged with murder in the first .degree, held, that bail should be denied.</p>

<p>Appeal and Error — Failure op Plaintiff in Error to File Required Application por Order for Transmission op Record-Dismissal.</p> <p>A plaintiff in error being required by statute to file with his petition in error an application for an order directing the transmission of such original papers and a duly authenticated transcript of all such journal entries, or other entries of record as he may desire, and as may be necessary to exhibit the errors complained of, it is necessary to give the supreme court jurisdiction of the subject matter for the review of the errors complained of for the plaintiff in error to file the application so required to bring up the ' ■ record; and though a failure to file such application at the time the petition in error is filed would not be fatal to the proceeding, if it be filed within the time allowed by law for commencing the proceeding in error, it should be filed within the time allowed for commencing the proceeding, and where that has not been done a motion to dismiss on that ground must be sustained. But where • the necessary application for the record has been duly filed, the absence of the record without the fault of plaintiff in error will not be ground for dismissal; in such case further orders can be made as may be proper and necessary for the production of the record.</p>

Charles E. Carpenter, Judge. Action by Erling J. Engen against the Rambler Copper and Platinum Company, a corporation, for damages for personal injuries received while employed in the defendant’s mine. A verdict was directed in favor of the defendant, and judgment was rendered thereon. (The plaintiff prosecuted error. The material facts, are stated in the opinion.

Carroll H. Parmelee, Judge. Plaintiff in error moved to strike the bill of exceptions and to dismiss, whereupon defendant in error moved for leave to withdraw the bill for the purpose of amendment. The hearing was upon both motions. The material facts are stated in the opinion. The assignment of error based upon the overruling of the motion for new trial is sufficient to bring before the court all the assignments of error set forth in such motion.

Charles E. Carpenter, Judge. The action was by Carl Westman against the Acme Cement Plaster Company for damages for injuries received by the plaintiff while employed as a fireman in the defendant’s mill. The material facts are stated in the opinion. Judgment was rendered for the plaintiff, and defendant prosecuted error. The several motions to make the petition more definite and certain should have been sustained.

Originar proceeding in mandamus. The action was instituted in the Supreme Court on the relation of John Huckfeldt for a writ of mandamus to compel the State Board of School Rand Commissioners to issue to him a lease of school lands in renewal of a former lease, the right of renewal being based upon the provisions of section 613, Compiled Statutes, 1910, (Laws, 1903, Ch. 78, sec. 16). Heard on demurrer to petition and alternative writ.

Carroll H. ParmeleE, Judge. The material facts are stated in the opinion. The court having found generally for the plaintiff and also specially found that the defendant failed to keep the covenants of the deed on her part to be performed, and by the judgment ordered the deed to be cancelled and held for naught, it was error to award the personal property to the defendant and the judgment should be modified in that respect.

Charles E. Carpenter, Judge. Heard on motion to dismiss. The material facts are stated In the opinion. , ' • On an appeal from a joint judgment all parties affected by the judgment are necessary parties, and the failure to bring in such necessary parties is jurisdictional. (2 Cyc., 763, 764, 785; 4 Ency.

Roderick N. Matson, Judge. The action was brought in the district court by the Douglas Oil Fields against Robert O. Hilliard. From a judgment for plaintiff, the defendant brought error. The material facts are stated in the opinion.

David H. Craig, Judge. The material facts are stated in the opinion. The court erred in overruling the motion of plaintiff in error on the trial to exclude the testimony of witnesses whose names were not indorsed upon the information as required by statute. Upon this question the case of Boulter v. Státe, (Wyo.) 42 Pac. 610, is cited as containing the authorities pro and con.

Charles E. Carpenter, Judge. The action was for trespass and was brought by Noble & Carmody, a partnership, in the partnership name, against Frank L. Hudson. From a judgment for the defendant the plaintiff brought error. The material' facts are stated in the opinion. The action was properly brought in the partnership name, without stating the individual names of the partners. (Comp.

Criminal Law — Review by Triai, Court — Writ of Error Coram Nobis. Error to the District Court, Big Horn County; Hon. Carroee H. Parmeeee, Judge. From a judgment dismissing the petition for a writ of error coram nobis presented to the District Court by Milton A. Alexander, the petitioner brought error. The material facts are stated in the opinion.

Car-rorr H. Parmeree, Judge. The Board of County Commissioners of Weston County brought three separate actions against J. E..

Charles E. Carpenter, Judge. C. D. Fletcher was charged with the crime of perjury and convicted, and prosecuted error. The charge of perjury was based upon alleged false testimony given on the trial of the case of State v. Anthony Wilde, wherein said Wilde was charged with a felonious assault with an intent to commit rape upon one Bernice Wells. The other material facts are stated in the opinion.

Charuus E. Carpuntur, Judge. Anthony Wilde was charged with and convicted of the crime of perjury, the charge of perjury being based upon alleged false testimony given upon a trial of the accused for an alleged felonious assault upon one Bernice Wells with an intent to commit rape. The other material facts are stated in the opinion..

Charles E. Carpenter, Judge. Maggie Howard Gillespie, as executrix of the last will and testament of Samuel W. Gillespie, deceased, brought an action against The Toltec Live Stock Company, and individually brought' another action ■ against the same defendant. Judgment was entered for plaintiff in each action after the filing of a remittitur reducing the amount of a judgment previously entered upon a verdict. The defendant prosecuted -error.

David H. Craig, Judge. The material facts are stated in the opinion. The facts of the case called for the protection afforded by the statute of frauds. A sale is claimed by the plaintiff and disputed by the defendants. A sale was not evidenced by a written contract, note or memorandum subscribed by the party sought to be charged, nor was there a delivery of any part of the property or payment of any part of the purchase price.

Carroll H. Parmeeee, Judge. The action was brought by Lillie Powers against John W. Pense and J. D. Powers for the purpose of quieting the title of the plaintiff to certain premises claimed by her as a homestead. Judgment was rendered for the defendants and the plaintiff prosecuted error. The material facts are stated in the opinion.

On Reserved Questions from the District Court, Laramie County; Hon. Roderick N. Matson, Judge. John Arbuckle and others brought an action in replevin against William F. Pflaeging to recover the possession of certain cattle which the defendant had seized as state veterinarian, in consequence of the failure of the owners after notice to observe certain official requirements of the defendant under the inspection and quarantine laws.

Carrorr H. Parmrrrr, Judge. H. C. Dunkin brought the suit in justice court against F. A. Bortree and A. W. Lindley on an undertaking given when appeal was taken from a justice of the peace, the appeal having been dismissed. Judgment was rendered for plaintiff and an appeal taken to the district court, where judgment was also given for plaintiff against said defendants and their surety, John Hecht. Lindley was surety on the undertaking sued on.

David H. Craig, Judge. The action was brought by Joseph H. Williams against the Union Pacific Railroad Company, for damages alleged to have been sustained through an unnecessary act of a surgeon furnished by the defendant to the plaintiff when injured, in the performance of an operation upon the plaintiff. A general demurrer to the petition was sustained, and the plaintiff declining to plead further, judgment was rendered for the defendant.

Carroll H. Parmelee, Judge. Application to the district court for writ of mandamus brought in the name of the state, on the relation of M. R. Merrill against William H. Dillman, as county clerk of the County of Laramie.

David H. Craig, Judge. Action by A. T. Riffle against the Sioux City and Rock Springs Coal Mining Company, a corporation, and others, including A. B. Beall and B. E. Bogenrief, who were sued' in their capácity as receivers of the corporate property.

Car-roee H. ParmeEEE, Judge. The action was brought by Anna Finley against the Pulir man Company to recover damages alleged to have been sus7 tained by the plaintiff through the negligence of the defendant in failing to see that she was properly carried from .the defendant’s sleeping car at her destination, and carrying her past said destination to another station. Verdict and judgment was for the plaintiff and the defendant brought error*.

C. H. ParmeeEE, Judge. Charles A. Grippen was charged with a felony and convicted, and brought the case to the Supreme Court on error. Heard on motion to dismiss.

Origin At application for writ of prohibition. The application for the writ pf prohibition was made by Joseph Parrott and the State of Wyoming on the relation of the said Joseph Parrott, naming as defendants the District Court of the Third Judicial District, within and for the County of Uinta, and Dayid H. Craig, Judge.

Carpenter, Judge. The action was brought by Asa McManus and wife,. and Ora L. Allen to quiet title to a certain tract of land in Big Horn County. The defendants named in the petition were Martin McGrath and the three minor children of Robert A. McCoy, deceased, and John L. Davison, their guardian. Subsequently James F. Kinney was made a party defendant, and also John L. Davison in his capacity as administrator of the estate of Robert A. McCoy, deceased.

David-H. Craig, Judge. Karl Spinner, as administrator of the estate of Stephen-P. Emelle, deceased, having presented his final report and petition for distribution, one Sodonie Emelle, claiming to be t'he surviving widow of the deceased, filed objections and ■exceptions to the said final report and petition for distribution, alleging, among other things, that a decree of divorce which, had been granted the deceased in his life time was void, and that certain real estate…

Carroee H. ParmeeEE, Judge. The action was brought by W. S. Collins, in his own behalf and in behalf of citizens and taxpayers of the County of Big Horn, against the board of county commissioners of said county and the individual members of said board, to enjoin the defendants from selling, donating or conveying to the United States certain real estate in the town of Basin, the county seat of said county; the plaintiff claiming that said real estate had been dedicated or…