Volume 21 — Wyoming Reports

David H. Craig, Judge. The action was by Ed Brown against the Cow Creek Sheep Company upon a check signed in the name of the company for the sum of $2,500. A general demurrér to the petition was sustained, and the plaintiff elected to stand upon the petition as filed. Judgment was rendered for the defendant for costs. The plaintiff brought error. The material facts are stated in the opinion. Under the Negotiable Instruments Act (Comp.

Charles E. Carpenter, Judge. Henry A. Johnson instituted a contest before the state board of school land commissioners, seeking the cancellation of a state lease granted and executed to Clark Beck April 26, 1907, which lease had been assigned by Beck to C. K. Bucknum. From the decision of the board refusing to cancel the lease, the contestant appealed to the District Court.

Carroll H. ParmeleE, Judge. The action was brought in the District Court by Andrew J. Parker against Ada Meadows, and from the judgment rendered m the cause the defendant brought error. Heard on motion for substitution as defendant in error of the executor of the will of Andrew J. Parker, deceased, and-ón motion of the substituted defendant in error to strike the bill of exceptions from the files. The material facts are stated in the opinion.

Carroll H, ParmRles, Judge. The action was brought by Ned Quinn against William Huhn, and from a judgment in favor of the plaintiff the defendant brought error.

Craig, Judge. The material facts are stated in the opinion. Stating in a notice for an annual meeting of a corporation that it will be held not only for the election of trustees, but '“for the transaction of such business as may properly come before the meeting,” does not authorize the adoption of a resolution at such meeting providing for a sale of all of the corporate assets. (Ins.

District. Court, Albany County; Hon. Charles E. Carpenter,- Judge. Erom an order of the State Engineer rejecting an. application of Lemuel L- Laughlin for a permit to construct a reservoir, the applicant appealed to the State Board of Control.

’ ERROR to the District Court, Uinta County; Hon. David H. Craig,'judge. Hhe material facts are stated in the opinion. The property right of a ditch owner cannot be-taken from him by any decree or order of the State Board of Control, nor can such owner be divested of his property in the ditch except in the manner provided by law and upon the payment of just compensation.

Carroll H. Parmelee, Judge. Merlyn J. Gunnell and Walter J. Elder were charged with the crime of murder in the first degree, and convicted of murder in the second degree. Erom the judgment entered upon the verdict they brought error. The material facts are stated in the opinion. The court erred in issuing an open venire for the completion of the trial jury in the case against the objections of the defendants.

Eeeor to the District Court, Uinta County; Hon. Charles E- Carpenter, Judge. This was an action brought in support of an adverse mining claim by the Omaha-Wyoming Oil Corqpany, a corporation, against Charles W. Dean. From a judgment in favor of the plaintiff the defendant brought error. The material facts are stated in the opinion.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. The question to be here determined is whether or not the defendant proved the averments of his answer as to payment and settlement. The plaintiff introduced no evidence upon the question, and it is believed that a careful consideration of the evidence introduced by defendant fully establishes the payment and settlement alleged in the answer.

Carroll H. PaRmbleb, Judge. The material facts are stated in the opinion. The evidence tending to show an authorized or ratified contract of sale was sufficient for submission to the jury, and the court therefore erred in directing a verdict for the plaintiff.

Carroll H. Parmrlrr, Judge. Charles R. Benedict brought the action against the Carney Coal Company to recover for personal injuries received while working for the defendant in its coal mine as a coal miner. A peremptory instruction for the defendant was denied, and there was a verdict and judgment for the plaintiff. The defendant brought error. The material facts are stated in the opinion.

Charles E. Carpenter, Judge. The Cheyenne Cement, Stone and Brick Company brought the action against D'avid P. Evans to recpver the alleged value of the labor and materials furnished in the construction of a sidewalk. The answer alleged that the work was done under a special contract, and that it failed to comply with the contract in certain particulars. Judgment was rendered for the plaintiff, and the defendant brought error.

ParmelEE, Judge. Daniel Thomson was charged by information in the District Court with stealing one horse alleged to be “of value” and “the property of James Ryan.” The trial resulted in a verdict finding him guilty “as charged .in the information,” and the defendant was sentenced to a term in the penitentiary. The other material facts are stated in the opinion.

Roderick N. MatsoN, Judge. This was a proceeding for the condemnation of certain land in this state for a headgate and part of an irrigation ditch brought by the Lovella Ditch, Reservoir and Irrigation Company against the Grover Irrigation and Land Company. Judgment was rendered in favor of the petitioner and the defendant brought error. The material facts are stated in the opinion. The only points desired to be presented arise upon the demurrer to the amended petition.

Charles E. Carpenter, Judge. The action was brought by Fremont Lodge No. n, of the Independent Order of Odd Fellows, against the Board of the County Commissioners of the County of Fremont, and was heard in the court below upon an agreed statement of facts resulting in a judgment entered of record on January 16, ign, in favor of the defendant. The plaintiff brought error.

Carroll H. Parmelb®, Judge. Each of the actions was replevin brought by Alf Diefen-derfer against D. P. Hamilton. Erom a judgment in favor of the plaintiff in each case the defendant brought error. The material facts are stated in the opinions.

Carroll H. Parmelee, Judge. The action was brought by Theodore Justice, Henry Justice, William Warner Justice, James Bateman and Henry K. Kenderdine, co-partners doing business under the firm name and style of Justice, Bateman and Company, against A. R. Brock. Erom a judgment in favor of' the defendant the plaintiffs brought error. The material facts are stated in the opinion.

Charles E. Carpenter, Judge. The action was brought by Jesse M. Wheelock against William Scott Clark upon a promissory note given at the time of an application for life insurance for the amount of the first annual premium. From a judgment for the defendant the plaintiff brought error. The other material facts are stated in the opinion.

Original proceeding on habeas corpus. The material facts are stated in the opinion. contended that the identification of the plaintiff as the person indicted was not sufficient, and that the requisition papers were insufficient to justify the arrest, citing the following: State ex rel. v. Richardson, 24 N. W. 354; Ex parte Powell, 20 Fla. 806; Ex parte Hart, 63 Fed. 249; Ex parte Smith, 22 Fed. Cas. No. 12,968; Ex parte Morgan, 20 Fed. 298; 8 Am. & Eng. Ann.

<p>Appeal and Error — Briefs—Failure to File — Dismissal.</p> <p>1. Where, without presenting any excuse therefor, plaintiff in error has' failed to file briefs, and no extension of time therefor was applied for or granted, a motion to dismiss for that reason must be granted.</p>

Charles E. Carpenter, Judge. The action was brought by Annié F. Richardson against Adelaide J. Weaver to recover possession of certain real estate.

ORIGINAL proceeding in mandamus. The action was brought in the name of the state on the relation of Claude E. Jamison against Robert B. Forsyth, State Auditor, to require the payment of a claim of the relator out of an alleged existing appropriation for the office of state geologist. The case was heard upon a demurrer to the petition, it being conceded that all facts were fully and correctly set forth therein. The material facts are stated in the opinion.

•Charts E. Carpenter, Judge. The material facts are stated in the opinion. The findings of the trial court as to the value of the property in question, and the value of the one-half interest of the plaintiff is against the weight of the evidence. The only evidence worthy of consideration shows that the value of the tract in which plaintiff was interested was from $250 to $500 per acre.

Charlrs E. Carprntrr, Judge. The material facts are stated in the opinion. An action for malicious prosecution cannot be maintained upon an arrest made upon a complaint charging no crime, or where the alleged complaint was prepared by the justice of the peace and only signed by the parties giving the information to the justice, and said parties took no part thereafter in the arrest or proceeding.

David H. Craig, Judge. Proceeding brought in’ the District Court of Uinta County for the probate of an alleged nuncupative will of Rody Thornton, deceased. Objections were filed and a judgment was entered refusing to admit the instrument to probate, whereupon the petitioner brought error. The other material facts are stated in the opinion.

Carroll H. Parmrler, Judge. The material facts are stated in the opinion. Failing to allege any specific promise of the decedent to pay the plaintiff for his services, the petition is insufficient.

Carroll H. Parmelee, Judge. The material facts are stated in the opinions. The petition fails to state a cause of action and therefore the court should have sustained the objection to the introduction of any evidence by the plaintiff. No authority is shown for the borrowing of money for the company by the plaintiff.

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. Parol evidence is inadmissible to contradict the terms of a written instrument. (21 Ency. Eaw, (2nd Ed.) 1078.) Such evidence is inadmissible to show that a third party is interested in the contract as a. partner, thereby contradicting the terms of the instrument.

David H. Craig, Judge. The material facts are stated in the opinion. The contestant, Hufford, failed to establish a right to the use of any of the water of the stream or any of the allegations contained in his contest affidavit.

Carroll H. Parmelee, Judge. The action was brought by Charles Schmidt and others, doing business as Charles Schmidt & Sons, against the Carlson Sheep Company, a corporation. Upon a trial in the District Court judgment was rendered for plaintiffs and the defendant brought error. The material facts are stated in the opinion.

Carroll H. Parmelee, Judge. Herman Claussen was charged with the crime of murder in the first degree, convicted of involuntary manslaughter, and prosecuted error. The material facts are stated in the opinion. A defendant in a criminal case has the right to be tried decently and in order, in an atmosphere unpolluted by the breath of hostile public sentiment. If he has not been so tried a new trial should be granted.

Charles E. Carpenter, Judge. The material facts are stated in the opinion. The striking of the motion for a new trial from the files was equivalent to overruling and denying the same, so that if the order striking the motion was error the court may here consider the questions presented by said motion, under the assignments of error.