Volume 22 — Utah Reports

Original application in mandamus to compel the third district court to allow a trial by jury after failure of applicant to pay the jury fee as required by the rule of court.

A. N. Cherry, Judge. Action by the Civic Federation to compel Salt Lake County to pay the claim of plaintiff filed in accordance with provisions of Chapter 30, Laws ,of 1897.

W. N. Dusenberry, Judge. Action to determine the rights to accretions on the shores of Utah Lake. Plaintiff claiming under a grant to the meander line. From a judgment for plaintiffs, defendants appealed. “It was error to admit parol evidence to limit, enlarge, or in any manner vary the written description, which, according to the testimony, was accurate, definite, unambiguous and certain, and which clearly expressed the intention of the parties to the deed.

A. G. Norrell, Judge. Appellant was convicted under section 4221 R. S. 1898, which provides ‘ ‘ any person who shall carnally know any female over the age of 13 years and under the age of 18 years, shall be guilty of felony.” From the judgment, and sentence of conviction, defendant appeals. “Where a specific offense is charged, the indictment cannot be sustained by proof of the second offense, even on the same day.

Hon. W. M. McCarty, Judge. Action for damages for trespass, and for a perpetual injunction, restraining defendant from entering upon plaintiff’s land and constructing a ditch thereon.

Hon. H. H. Bolapp, Judge. Action for damages for the death of plaintiff’s son alleged to have been caused by the negligence of defendant company. From a judgment of non-suit, plaintiff appealed.

<p>¡Statutory Construction — Language Used —Legislative Intent.’ Rule of Statutory Construction — Chap. 64, S. L. 1899 — Construction. State Board op Land Commissioners— Duties —Under Sec. 16, Chap. '64, S. L. 1899. Application por Lands — Under Chap. 64, S. L. 1899 — When Applicant Acquires a Vested Right. Mandamus — Lack op Jurisdiction in District Court — To Control Land Board’s Discretionary Powers.</p> <p>Statutory Construction — Language Used — Legislative Intent.</p> <p>When the language of a particular provision of a statute is ambiguous, construction may be resorted t.o in order, if possible, to ascertain the true intention of the legislature, but where there is no ambiguity, the language must be taken as the expression of the legislature’s intention, unless other provisions of the statute clearly show that the language was used in a sense different from its natural and ordinary meaning.</p> <p> Buie of Statutory Construction. </p> <p>A court will not construe a particular provision of a statute, so as to neutralize or modify other provisions if any other construction of the particular provision is at all tenable.</p> <p>Chap. 64, S. L. 1899 — Construction.</p> <p>There are no provisions in Chap. 64 of the Session Laws of 1899 which indicate that the word “may” occurring in the sentence “The board may select and contract to sell,” etc., in Sec. 16 of said act, was used in any other than its ordinary sense; to have used it otherwise would have neutralized the plain provisions of some, and materially modified others, of the sections of the act.</p> <p>State Board of Land Commissioners — Duties—Under See. 16, Chap. 64, S. L. 1899.</p> <p>Section 16, of Chap. 64, Session Laws of 1899, does not make it the duty of the State Board of Land Commissioners to select and contract land applied for, nor to fix a uniform price for all lands selected.</p> <p>Application for Lands — Under Chap. 64 S. L. 1899 — When Applicant Acquires a Vested Bight.</p> <p>Under Chap. 64 Session Laws of 1899 after an application for lands is made, until the selection is made and the price to be paid, and the time in which the deferred payments shall be made are fixed by the board, and assented to by the applicant, and a contract of sale containing the stipulation agreed upon is executed, the applicant has no vested rights whatever.</p> <p>Mandamus — Lack of Jurisdiction in District Court — To Control Land Board’s Discretionary Powers.</p> <p>A court has no jurisdiction to direct, by mandamus, how the discretionary power, vested in the State Board of Land Commissioners by chapter ¿4, Session Laws of 1899, shall be exercised.</p>

<p>Judicial Notice — Of Prior Proceedings in same Case — Judicial Notice by State Court — Of Decision of U. S Supreme Court — Doctrine of Law of the Case — When not Applicable — Arrest—Criminal Law — Unlawful Jury — Sentence and Judgment — When Nullities —Criminal Procedure — .Conviction in Violation of Federal Constitution — Void Judgment — No Jeopardy.</p> <p>Judicial Notice — Of Prior Proceedings in same Vase.</p> <p>Courts will generally take judicial notice of whatever ought to be generally known within the limits of their jurisdiction, and particularly will they take notice of the records and prior proceedings in the same case.</p> <p>Judicial Notice by State Court — Of Decision of U. S. Supreme Court.</p> <p>Where a state law, as to a certain class of cases, has once been held, by the Supreme Court of the United States* to be in contravention of the'constitution of the United States,'or ex post facto, a state court will, whenever thereafter a case of such class comes before it, take notice of the decision of the federal court, and of the question, respecting which the decision was made.1</p> <p>Doctrine of Law of the Case-. — When Not Applicable — Arrest.</p> <p>When a decision by the Supreme Court of the United States renders absolutely void, convictions and'judgments in certain cases which have never been appealed, on account of certain similar defects in procedure, a defendant released from sentence under such a void judgment may be rearrested and tried for the same offense, and the doctrine of the law of the case does not apply.</p> <p>Criminal Law — Unlawful Jury — Sentence and Judgment — When Nullities.</p> <p>In a criminal case tried before an unlawful jury, all proceedings, after plea entered, are wholly void because of a lack of jurisdiction in the court, and a sentence and judgment therein are mere nullities and may he so treated by every one at any time.</p> <p>Criminal Procedure — Conviction in Violation of Federal Constitution — Void Judgment — No Jeopardy.</p> <p>An unlawful trial and a conviction therein followed by an absolutely void judgment on such conviction, does not have the effect of putting a defendant once in jeopardy, and upon his release from custody under such void judgment, he may be rearrested under the same indictment and upon the same charge; and no plea of once in jeopardy can be a bar to a lawful trial notwithstanding his former conviction stands unreversed.</p>

Hon. H. H. Rolapp, Judge. Action by plaintiffs to have declared and established an express trust in their favor in a certain alleged fund alleged to have been delivered to defendant for the benefit of plaintiffs.

(Appealed to the U. S. Supreme Court.) Appeal from the Third District Court Salt Lake County. Hon. A. N. Cherry, Judge. The facts in this case were undisputed, and the real controversy was as .to .the constitutionality of the exemption law of Utah, section 7, page 99, Session Laws of 1899, exempting absolutely the yvages of a married man for sixty days next preceding the levy of execution or garnishment.

<p>Appeal from the Fourth District Court, Utah county. Hon. ~W. N. Dussenberry, Judge.</p> <p>Action to revive a territorial judgment. The answer alleged lack of jurisdiction, in the court.</p>

Hon. Charles H.. Hart, Judge. Action in ejectment for a certain piece of land in Brigham City. Defendant denied plaintiff’s allegations of ownership and plead the statute of limitation. From a judgment for defendant plaintiff appealed. Civil actions can be commenced only within the periods prescribed in the three succeeding chapters, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by státute. Com.

Hon. Ogden Hiles, Judge. Action to recover a balance due plaintiff on a bond executed by Kroeger as a stockholder in plaintiff company, evidencing a debt secured by mortgage. From a judgment for defendants, plaintiff appealed. N o relief will be granted by the court unless there is an allegation in the complaint or answer upon which to base such relief, nor unless there is a prayer for the same.

Hon. A. N. Cherry, Judge. Action to recover damages for the death of plaintiff’s son, caused by the negligence of defendant company. At the close of plaintiff’s testimony a non-suit was granted. From such judgment of non-suit plaintiffs appealed.

Hon. A. N. Cherry, Judge. Action by plaintiffs to recover upon a written contract. Defendants answered and counter-claimed. A demurrer to the counter-claim was sustained. Defendant amended its answer and' counter-claim. A second demurrer was interposed and sustained and the counter-claim 'was stricken out. From a judgment for plaintiffs defendant appealed.

Hon. H. H. Rolapp, Judge. Action to recover an amount claimed by plaintiff as due Mm upon withdrawal from defendant company. From a judgment for plaintiff, defandant appealed.

Hon. W. M. McCarty, Judge. Defendant was prosecuted for and convicted of the crime of assault with intent to commit rape, and from the judgment entered on tbe conviction has appealed to this court.

Hon. Charles H. Hart, Judge. Defendant was prosecuted for and convicted - of the crime of murder in the first degree and from the judgment entered on conviction appealed to this court.

Hod. Ogden Hiles, Judge. Action to foreclose a mortgage and recover an amount due on a note together with taxes and attorney’s fees. From a judgment for plaintiff defendants appealed. In an action for the recovery of the purchase price of real estate, the recital of the consideration in the deed is at least prima facie evidence of the amount of the purchase price. 6 American & Eng. Enc. of Law, 2d ed. 778, and cases cited.

Hon. A. N. Cherry, Judge. Action to recover damages for personal injuries and for injury to personal property claimed to have been occasioned through the negligence of the defendant company. From a judgment of non-suit entered at the close of plaintiff’s testimony, defendant appealed.

Hon. Ogden Hiles, Judge. Action to quiet title to real estate and for damages for the removal of. a division fence. From a judgment and decree for plaintiff quieting his title, defendant appealed. An objection on the ground of failure to plead special damages is waived if not made when the evidence is offered. Lashus ■ v. Chamberlain, 6 Utah, 385, and authorities there cited.

■Appeal from the Third District Court, Salt Lake County. Hon. A. N. Cherry,.Judge. Action in replevin to recover certain personal property and damages for the unlawful detention of the same. From a judgment of non-suit entered on motion at the close of plaintiffs’ testimony, plaintiff appealed.

Hon. Ogden Hiles, Judge. James T. Little died in 1898 leaving a will under which the widow declined to take, and before distribution filed her petition asking that the household goods, one-third in value of all the legal and equitable estate in the real property of the. deceased at the time of his death, one-third of all the personal property and the homestead where the deceased resided, be set off to ber.

Hon. Ogden Hiles, Judge. Action to foreclose mechanic’s lien. From a judgment in favor of the plaintiffs ,and certain defendants, the defendants Caine and Hooper appealed and the’ defendants Duvall and Mills prosecuted a cross appeal. Sub-contractors can have no higher or greater rights against the owner than the contractor. The contract with the latter measures and limits the rights of both. Phillip Mec. Liens, Secs. 58, 62, 143; Boisot on Mec. Liens, Sec. 228.

Hon. A. N. Cherry, Judge. . Action by plaintiff to recover damages alleged to have been occasioned by the acts and conduct of defendant which prevented the plaintiff, a colored man, from serving upon a jury. Defendant demurred upon the ground that the complaint did not state a cause of action. The demurrer was sustained and the plaintiff failing to amend his complaint the cause was dismissed. From the judgment of dismissal plaintiff appealed.

Hon. Jacob Johnson, Judge. Action for damages for trespass and for an injunction preventing further trespass upon plaintiff’s land. Defendants justified claiming a prescriptive right of way over-plaintiff’s land. From a judgment and decree in favor of plaintiff defendants appealed. The only question 'in this case, is as to the length of time necessary to mature a prescriptive right.

Hon. E. Y. Higgins, Judge. Defendant was charged by the information with the statutory crime defined by Section 4221 R. S. 1898. From a verdict of guilty and the judgment and sentence entered thereon defendant appealed.

Hon. Ogden Hiles, Judge. Action by plaintiffs in aid of a protest and adverse claim to mining ground. From a judgment for plaintiffs defendant appealed. “In the absence of proof that an alien has become a citizen of the United States, bis original status is presumed to continue.” Hauenstein v. Lynham, 100 U. S. 483.

Hon. E. V. Higgins, Judge. Action by plaintiff for personal injuries alleged to have been inflicted through the negligence of defendant company. Defendant company effected a compromise with plaintiff direct without considering plaintiff’s attorneys. Plaintiff’s attorneys in this action seek to prosecute the same for their benefit claiming a lien on plaintiff’s cause of action. From a judgment in favor of the attorneys and fixing their qonpensation defendant appealed.

Hon. A. N. Cherry, Judge. Action upon a promissory note to which defendant plead the Statute of Limitations. From a judgment for defendant plaintiff appealed.

Hon. Ogden Hiles, Judge. Action for accounting. Defendant filed an answer' admitting, denying and setting up a counterclaim and prayed for an accounting, and that be be decreed a lien upon the property of plaintiff. Plaintiff filed a replication denying affirmative matter in the answer and pleading payment. From a decree allowing the defendant a lien and giving the plaintiff the right to redeem the property on payment of the amount of the lien plaintiff appealed.

Hon. Ogden Hiles, Judge. Action by plaintiff in aid of a protest and adverse claim to certain mining ground. From a judgment for defendants, plaintiff appealed. The court erred in admitting the defendants’ exhibit “B” in evidence the notice of location of the Gold Reef Lode, the same not complying with Section 2324 of the Revised Statutes of the United States. Barger v. Lesieur, 9 U. 192; i. d. 8 U. 160.

Hon. E. V. Higgins, Judge. Action by plaintiff to recover a certain sum alleged to be due plaintiff on money deposited with the defendant company. Defendant answered denying generally and alleging as a further defense an account stated between plaintiff and defendant subsequent to the closing of business between them. From a judgment for defendant, plaintiff appealed.

Hon. H. H. Rolapp, Judge. Action by plaintiff to recover damages for personal injuries alleged to have been inflicted through the negligence of defendant company. From a judgment for plaintiff, defendant appealed.

Hon. A. N. Cherry, Judge. Action by plaintiff to recover damages for the killing of her husband alleged to have been caused by the negligence of defendant company. From a judgment for defendant plaintiff appealed.

Original application in this court for the disbarment of Evans & Rogers, attorneys practicing before this court, upon a charge of champerty. Judgment requiring that Evans & Rogers pay over to the clerk of this court for the use and benefit of the widow and minor children of one Nelson a certain sum found to be due said parties, and that unless such payment was made within 60 days each of said parties be permanently disbarred as attorneys of this court. STATEMENT OE PACTS.

<p>Criminal Law — Section 4919 R. S. 1898 — When Not Applicable —Fine—How Collected — Under Sec. 4925 R. S. 1898 — Criminal Judgment — Fine and Imprisonment — Judgment op Fine— When Enforceable by Imprisonment — Secs. 4925'and 4926 R. S. 1898 — Excessive Imprisonment — Void Judgment.</p> <p>Criminal Lavs — Section 4919 B. S. 1898— When Not Applicable.</p> <p>Section 4919 R. S. 1898 is not applicable to cases in which the court has imposed a definite term of imprisonment, and also a fine coupled with imprisonment until the fine is paid.</p> <p>Fine — How Collected — Under Sec. 4925 R. S. 1898.</p> <p>Under section 4925 E. S. 1893, a fine, imposed as a punishment in a criminal action, may be collected upon execution the same as a judgment in a civil case.</p> <p>Criminal Judgment — Fine and Imprisonment.</p> <p>Where there is a judgment of imprisonment and a judgment of fine, the fine is not enforceable by imprisonment, but only collectable on execution as in civil cases.</p> <p>Judgment of Fine — When Enforceable by Imprisonment — Seas. 4925 and 4926 R. S. 1898.</p> <p>Under sections 4925 and 4926 E. S. 1898, a judgment of fine is only enforceable by imprisonment when it stands alone, and not coupled with a distinct sentence of imprisonment, and when it provides for á definite rate per day of service to be applied on the amount of the fine. '</p> <p>Excessive Imprisonment — Void Judgment.</p> <p>A judgment which imposes imprisonment for the nonpayment of a debt or fine due the state, after the right to punish by imprisonment has been exhausted by the completion of a jail sentence on the same judgment, is excessive and void in so far as it attempts to imprison for nonpayment of such a fine.</p>

Hon. W. M. McCarty, Judge. Action by plaintiff to recover a certain sum of money paid to defendant county under protest and claimed to have been an illegal tax. From a judgment for plaintiff defendant appealed. If one voluntarily lists for taxation corporate stocks which are not taxable, and they are taxed accordingly, he cannot complain, as it is his own fault. Pep. Eif e Ins. Co. v. Pollock, 75 Ill. 292.

H. H. Rolapp, Judge. Action for damages for the negligent killing of certain horses of plaintiff. In the lower court a motion for non-suit was granted from which judgment plaintiff appealed.

Hon. Ogden Hiles, Judge. Action by plaintiffs to quiet title and determine an adverse claim to a certain interest in mining ground. From a judgment for plaintiffs, defendants appealed. STATEMENT OP PACTS.

Hon. J. E. Booth, Judge. Action by plaintiff to compel specific performance of a contract in relation to real estate entered into by defendant’s decedent. A demurrer was interposed in the lower court upon the ground that the complaint did not state facts' sufficient to constitute a cause of action. Said demurrer was sustained and plaintiff electing to rely upon his complaint judgment of dismissal was entered and plaintiff appealed.

Hon. J. E. Booth, Judge. Defendant was prosecuted and convicted of the crime of rape under an information filed by the District Attorney of the Fourth District. From a judgment and sentence entered upon conviction defendant appealed, challenging the constitutionality of Chap, 56, S. L. 1899.

Hon. E. V. Higgins, Judge. Action to determine an adverse right to certain mining ground. From a judgment for defendant, plaintiff appealed. The location of the General Sheridan tunnel was not made in accordance with the law. 1 Lindley on Mines, Secs. 472, 475; Land Office Regulations, 20-26; 2 Lind-ley on Mines, p. 1189.

Hon. E. V. Higgins', Judge. Action in which plaintiff seeks to recover a certain sum alleged to have been levied and collected by defendant as a tax on the net annual proceeds of defendant company’s mine and paid by such company under protest. From a judgment for defendant plaintiff appealed.

<p>Appeal from the Third District Court Tooele County. Hon. A. N. Cherry, Judge.</p> <p>From an order appointing a receiver pendente lite defendant company appealed.</p>

Hon. Ogden Hiles, Judge. This was an equitable action founded upon contract.

Hon. Ogden Hiles, Judge. By this action Thomas Cupit, intervenor and appellant, seeks to ontain the proceeds of certain fire insurance policies in the hands of the receiver of the Park City Bank, and received by him at a time when Cupit, by virtue of his attachment levy, had a lien upon the property, upon which the buildings, afterwards burned, were situated, claiming that the receiver was a trustee for his benefit to the extent of the funds received.