Volume 21 — Utah Reports

Ogden Hiles, Judge. Action by plaintiff for an injunction restraining defendant from selling plaintiff’s stock to pay an assessment levied thereon by defendant’s board of directors. From a decree perpetually enjoining defendant, defendant appealed.

E. Y. Higgins, Judge. Action to recover money loaned defendant company at the request of its manager.

Ogden Hiles, Judge. Action to have a loan made by defendant corporation to plaintiff declared fully paid; to have certain shares of stock decreed to be the property of the plaintiff, free from any lien on account of the loan or otherwise; to have it adjudged that the stock was fully paid on a certain date; to require defendant to reinstate plaintiff as a stockholder to the extent of said stock, and to have an accounting and judgment for any balance which may be due the…

H. H. Rolapp, Jttdge. Action by plaintiff to have his title to certain water quieted and confirmed, and to have the action of the defendant corporation in levying a tax upon plaintiff’s land to pay the expense of distributing the water, and the sale of plaintiff’s property for non-payment declared wrongful and illegal. Cited Sees. 96, 97, 98, and 141, Dillon on Mun. Corp., Yol. 1. Plaintiff’s right to the use of the water in question is a hereditament appurtenant to land.

Ogden Hiles, Judge. Action in ejectment for a certain specific strip of land. Answer and cross-complaint by defendant setting up adverse possession. From a judgment for defendant, plaintiff appealed.

Ogden Hiles, Judge. Action to have a certain contract with a building and loan association declared unconscionable; that the loan from… Held: the company, with the approval of the treasurer, may appoint a collecting agent to receive and receipt for the monthly payments ; that the respondent at the request of said agent attached his signature to the printed assignment, and said agent retained the said certificate of stock; that the company, upon the execution and delivery…

Action to have a certain contract with a building and loan association declared unconscionable; that the loan from said company be declared a simple loan, and that the mortgage securing the same be declared fully paid and canceled. From a judgment for plaintiff, defendant appealed-

Hon. Ogden Hiles, Judge. Action to have a certain contract with a building and loan association declared unconscionable; that the loan from said company be declared a simple loan and that the mortgage securing the same be declared fully paid and canceled. From a judgment for plaintiff, defendant appealed.

„ Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge. Action to have a certain contract with a building and loan association declared unconscionable; that the loan from said company be declared a simple loan, and that the mortgage securing the same be declared fully paid and canceled. From a judgment for plaintiff, defendant appealed.

Hon. A. N. Cherry, Judge. Action to recover on an order given plaintiff by contractors who built defendant’s house. From a- judgment for plaintiff, defendant appealed. What we complain of is that the tenth instruction, in effect, directed the jury to deduct $700 from the amount they found was due Mason & Oo. on January 14, 1891, and that thereby the verdict was $700, and interest for eight years, more than it otherwise would have been. McGornich v. Sadler, 12 Utah, 468.

E. Y. Higgins, Judge. Action, to recover for certain water sold and delivered in Tooele County. From a judgment for plaintiff defendant appealed. We claim that the court had no jurisdiction in this case, the contract having been made and reduced to writing in Tooele County, where the property was situated affected by the contract, and where it was to be carried out, and where the breach took place, if breach there was.

A. N. Cherry, Judge. Action to recover damages for injuries alleged to have been caused by the negligence of defendant company. From a judgment for plaintiff, defendant appealed. The case is governed by the well-established rule, that the master will not he bound by his agent’s declaration as to past transactions.

An action to have an order of the probate court discharging defendant as executor in a certain estate set aside and to require an accounting for certain moneys received ^ by him as trustee, and to .have such moneys turned over to plaintiff as present administrator of said estate. Defendant demurred upon the ground that plaintiff had no legal capacity to maintain the action.

Original application in this court for a writ of mandamus to compel the judge of the Fourth District Court to reinstate a certain cause, by him dismissed and proceed with the trial of said cause on its merits. STATEMENT OE EAOTS. It appears from the petition that in September, 1895, in the Third Judicial District Court, of the late Territory of Utah, an indictment was returned charging one George Bates with the crime of murder in the second degree.

Basein, J., dissenting.2 Original application for a writ of certiorari to review the action of the Fourth Judicial District Court in dismissing a certain appeal. It is argued that Sec. 9, of Art. 8, of our constitution, prohibits the supreme court from reviewing any action of the district, no matter how wrongful, illegal, or arbitrary, if it concerns matters arising in justice’s courts.

' H. H. Rolapp, Judge. Action by the plaintiff to recover damages on account of an alleged breach of a written contract. From a judgment for defendant, plaintiff appealed. An agreement in its first inception may lack mutuality, and may have no consideration expressed, yet certain acts may afterward be done by the party not bound in the first instance, which will give the agreement mutuality and a consideration. Jones v. Snow, 2 Pac.

E. Y. Higgins, Judge. Action on a protest and adverse claim to determine the ownership and right of possession of certain mining ground. From a judgment for defendants, plaintiffs appealed. A bill for relief on the ground'of fraud must be specific in stating facts which constitute the' fraud; it is not sufficient to charge fraud in general terms.

Ogden Hiles, Judge. Action to quiet title. From a judgment for defendant, plaintiff appealed. The lien of a judgment against the debtor’s real estate is a creature of statute pure and simple, and stands or falls absolutely by the statute. This is not a statute of limitations, but a statute of grant, and can not be extended by construction. 4 Kent’s Commentaries, 429; Thomp-sons. Avery, 11 TJtah, 214; S. C., 39 Pac., 833; Roclchill y. Harma, 15 Howard U. S., 196.

Ií. H. Rolapp, Judge. Action by plaintiff to recover damages for personal injuries alleged to bave been caused by the negligence of defendant company.

Hon. A. Gr. Norrell, Judge. Defendant was prosecuted and convicted for the crime of rape. From a verdict of guilty and the judgment entered thereon, defendant appealed to this court. The rule is that if the prosecutrix at her earliest opportunity made complaint of her injury, that fact may be shown and the person to whom such complaint was made. But the particulars thereof can not be given in evidence.

H. H. Rolapp, Judge. Action to recover damages for the death of plaintiff’s infant son alleged to have been killed by a car of the street railway, operated by defendants, and through their negligence. From a judgment for defendants, plaintiff appealed. We assert it as a legal proposition that under the law an individual can not operate a railroad — nor a street car system. Roland R. Conklin can not remain in New York and operate a street ear system in Utah.

W. M. McCarty, Judge. Action to set aside a sale on execution on the ground that plaintiff at the time of the levy and sale was the head of a family with whom he resided in the vicinity of the land, and that the proceeds thereof were and had been used for the support of himself and family; that the land constituted his homestead, and was exempt from levy and sale on execution. From a judgment for plaintiff, defendants appealed.

H. H. Rolapp, Judge. ■ Action to set aside tho mortgage and note on the ground that it, was made without consideration and for the purpose of hindering and delaying creditors, and especially respondent. From a judgment for plaintiff, defendant appealed. ‘ ‘ The payment of a judgment may be proven by parol evidence, by separate written receipt, or by a receipt upon the record of the court.” Hollenbeck v. 8'tanberry, 38 la., 325; Black on Judgments, Yol. II, Sec. 990.

<p>Const., Art. vii,,Sec, 13 — Prohibition op — Sec. 963, R. S. 1898 — State Board op Examiners — Powers — Duties.</p> <p>■ Sec. 13, Art. VII, Const., does not prohibit the passage of a law such as Sec. 963, R. S. 1898, creating a legal obligation on the part of the State, out of what was a mere moral obligation, without such obligation having been first considered by and acted upon by the State Board of Examiners.</p>

W. N. Dusenbury, Judge. Action to restrain the diversion of certain waters by defendant. From a judgment for plaintiff, defendant appealed. ‘ ‘ The law is well settled that adverse use of water for seven years, no matter what right any other persons may have had prior thereto, is in law a grant, and the other parties are presumed to have abandoned their rights.” 2 Com.

H. H. Rolapp, Judge. Action by plaintiff to recover of defendants, attorneys at law, a certain sum claimed under a contract between plaintiff and defendants in the following language. “Ogden, Utah, Dec. 2, 1893.

Basein, J., dissenting. Appeal from the First District Court, Cache County, Hon. C. H. Hart, Judge. Action by Cache County to recover the sum of $600 alleged to be due from defendant under the provisions of a certain ordinance passed by the Board of County Commissioners, imposing a license tax upon all persons, companies, or corporations in the business of raising, grazing, herding, or pasturing sheep within the limits of said county.

Ogden Hiles, Judge. Action for an injunction to restrain defendant from diverting certain waters and for damages. From a judgment for defendants, plaintiff appealed. The statutes of Utah, in force at the time the decision was rendered in this case, were, as now, very liberal in respect to amendments for the furtherance of justice.

Original application for a writ of mandamus to compel defendant as treasurer of tbe Board of Education of Salt Lake City to pay plaintiff a warrant issued to her for a certain period of sixteen days, during which time the schools of Salt Lake City were temporarily suspended on account of an epidemic of smallpox. STATEMENT OF FACTS.

Jacob Johnson, Judge. Action to restrain defendant from interfering with the waters of a certain spring, and to quiet title to the use of the water in the plaintiff. From a judgment for defendant, plaintiff appealed. The statute, Sec. -2780, C. L. U. 1888, was held to be valid by this court in the case of Stowell v. Johnson, 7 Utah, 227.

H. H. Eolapp, Judge. Action to recover certain' stock sold for delinquent assessment, and to have the sale declared void, and to obtain a re-issue of said stock. From a judgment for plaintiff, defendant appealed. Whether the failure of the officer to file his oath of office makes his acts void.

Ogden Hiles, Judge. There were two cases, the issues of which were identical, and both tried together; in each of these cases the action was brought to quiet title. Held: that the vendor can not, during non-occupancy of such land by the vendee, lawfully re-enter possession, and hold it, merely because of the non-payment of the notes; and, further, Held, that, in the event he does so re-enter, ejectment by the vendee will lie to recover possession.

A. N. Cherry, Judge. Action under Section 3511, E. S. 1898, to determine an adverse claim and to quiet title to certain real property. From a judgment for plaintiff defendants appealed. Tbe plaintiff never owned the property described in the decree. His deed contains a void description.

Original application in this court for a writ of certio-rari to review tbe action of tbe district court in and for Weber County, in refusing to dismiss an appeal from justice’s court, upon tbe ground tbat no appeal bond bad been filed as provided by Section 3747, R. S. 1898. STATEMENT OF FACTS. This is an application for a writ of certiorari.

Hon. A. N. Cherry, Judge. Action by plaintiff to recover certain sums of money claimed to be due him as commission on certain policies of insurance obtained by him for defendant while acting as defendant’s agent. From a judgment for plaintiff defendant appealed.

W. M. McCarty, Judge. Action by plaintiff to recover the sum of $2,000 with interest, alleged to have been deposited by plaintiff in defendant’s bank for his own use and benefit, but in the name of a… Held: in Mound City Paint and Color Co. v. Com. Nat.

. Appeal from tbe Second District Court, Weber County, Hon. H. H. Eolapp, Judge. Action by plaintiff against defendant, as treasurer of Weber County, to have declared void all taxes assessed against the bank for the year 1898 in excess of $612.99, and to have the treasurer enjoined from collecting such excess, or from enforcing the collection by sale of the property assessed, or otherwise.

Ogden Hiles, Judge. Action by appellant as receiver for C. Bunting and Co., to obtain possession of certain county warrants claimed by him to have been wrongfully converted by an attachment suit in the State of New York. From a judgment for defendants plaintiff appealed. I. First we consider what the character of this indebtedness was. They were not negotiable promissory notes or bills of exchange. They were mere duebills.

A. N. Cherry, Judge. Action in replevin for certain cattle or their value, the complaint alleges that defendants wrongfully and unlawfully took the cattle from the possession of plaintiffs in Salt Lake City and County, and that after demand had been made, they unlawfully withheld such possession from the plaintiffs. From a judgment for plaintiffs, defendants appealed. Replevin in the cepit can not be maintained against any person who came lawfully into possession.

H. H. Rolapp, Judge. An action to recover an amount claimed to be due as rent of a certain building, collected and retained by defendant, but claimed by plaintiff under an adjudication of property rights in a divorce suit, the decree in which suit affected the property and the rents now in question. From a judgment for defendant, plaintiff appealed.

Jacob Johnson, Judge. Action for the recovery of damages for personal injuries sustained by plaintiff while in the employ of defendant, alleged to have been caused by the explosion of a defective boiler which plaintiff, in the discharge of his duties, was engaged in using, and of which defects the defendant was, but the plaintiff was not, aware. From a judgment for plaintiff defendant appealed.

A. N. Cherry, Judge. Application in the district court for a writ of mandate to compel the defendant board of education to admit Florence Cox, a female of the age of ten years, to a certain school in said city, as a pupil. Admission was denied on account of non-vaccination, and the prevalence of smallpox in' the city of Salt Lake.

Wm. M. McCarty, Judge. Second appeal of this case; first appeal found in 19 Utah,' 289. Action by plaintiffs as stockholders of defendant bank, on behalf of themselves and all other stockholders, creditors, and their suit against defendants for an accounting, and for damages alleged to have been occasioned by reason of the negligence of individual defendants as directors and officers, in the management of the bank.

Ogden Hiles, Judge. This was an equitable action brought to recover a. fund amounting to $50,000 alleged to be held by the defendant, and to have been acquired by him as trustee of C. Bunting, etc., bankers, a corporation organized under the laws of Utah. It was claimed in the complaint that this fund was derived from the proceeds of a life insurance policy issued on the life of Charles Bunting, deceased, for the sum of $50,000, payable on the death of Bunting to his estate.