Volume 22 — Wyoming Reports

Carroll H. ParmelEE, Judge. The material facts are stated in the opinion. The overwhelming preponderance of the evidence was against the plaintiff below, entitling the defendant ,to a new trial. If the plaintiff was entitled to any damages as a re-suit of the altercation, there was no reason for a recovery of more than a nominal sum. The assault was not an aggravated one, and hence it was improper to allow exemplary damages.

Charles E. Carpenter, Judge. The material facts are stated in the opinion. The writing relied upon as an offer by the defendant is too ambiguous, indefinite and uncertain to constitute an offer which upon acceptance could become a 'binding contract, without further negotiations settling and defining the terms thereof. It was nothing more than a step preliminary' to negotiations.

David H. Craig, Judge. The action was brought by O. H. Groo against John M. Sights, the nature of the controversy being stated in the opinion. From a judgment for defendant the plaintiff brought error. The only point involved is plaintiff’s right to change the point of his diversion.

Eeror to the District Court, Laramie County; Hon. Carroee H. ParmeeEE, Judge. J. Warren Jenkins was convicted of murder in the first degree upon an informaiton charging that on the 14th day of April, A. D. 1912, at the County of Laramie, in the State of Wyoming, he did feloniously, purposely and with premeditated malice, kill and murder one Jessie Jenkins. The deceased was his wife. A motion for new trial was overruled and the defendant brought error.

Original proceeding in habeas corpus. The proceeding was brought for the discharge of Margaret Kelsey, a minor child, by a petition presented in her name by W. H. Kelsey, her next friend, who was charged to be unlawfully in the custody of Owen Carroll, the Sheriff of the County of Platte. The material facts are stated in the opinion.

Carroll H. Parmlrr, Judge. The proceeding was brought by Ethel Brown against Robert E. Brown, for separate maintenance. There was a judgment for the plaintiff and defendant brought error. Heard on motion of the defendant in error for counsel fees and temporary alimony pending the proceeding in error.

David H. Craig, Judge. The action was brought by Ed. Thomas against John R. Mann to recover the possession of certain sheep. The issues and facts are stated in the opinion. There is no evidence in the record that the alleged contract for the lease of the sheep to Mann was signed by Emily Roman or by any person having authority to represent her.

Carroll H. ParmRles, Judge. The action was brought by Paul Stanko against the Wyoming Coal Mining Company to recover damages for a personal injury alleged to have been received by the plaintiff while in the employ of the defendant in its-coal mine, and through its negligence. A general verdict was returned, in favor of the plaintiff for $3200, and judgment was rendered against the company upon the verdict.

Parmelee, Judge. R. L. Mulholland, having been elected at the general election in November 1912, to the office of County Assessor of Crook County, brought this action against the Board of County Commissioners of Crook County to recover a balance claimed to be due him on his salary for the month of April 1913. From a judgment in his favor, the defendant brought error. The material facts are stated, in the opinion.

Reserved QUESTIONS from the District Court, Sheridan County; HoN. Carroll H. Parmelee, Judge. The case having been submitted to the District Court upon an agreed statement of facts, and a motion by the defendant for judgment and dismissal, upon the ground of the alleged unconstitutionality of the statute under which the case was brought and prosecuted, the • constitutional questions thus raised were reserved for the decision of the Supreme Court.

Reserved Questions from the District Court, Albany County; Hon. Charles E. Carpenter, Judge. Certain questions were reserved for the decision of the Supreme Court, under the statute authorizing the reservation of' constitutional questions, in a criminal prosecution wherein Peter Smart was charged with having violated the law prohibiting a licensed liquor dealer from keeping his place of business open or disposing of intoxicating liquors on his premises on Sunday.

Charles E. Carpenter, Judge. The material facts are stated in the opinion. The filing of a chattel mortgage does not constitute notice unless all the statutory steps have been complied with, and to entitle the mortgage to be recorded it must be acknowledged and certified as required by statute. (Butte Hdw. Co. v. Sullivan, 7 Mont. 307; Thompson v. Scheid, 39 Minn. 102, and cases cited).

Carroll H. Parmelee, Judge. The material facts are stated in the opinion. The verdict was insufficient for failing to find the value of the property stolen. (Comp. Stat. 1910, Sec. 6252; Armstrong v. State, 21 O. St. 357; Holmes v. State, 58 Neb. 297> N. W. 641; McCoy v. State, 22 Neb. 418, 35 N. W. 202; Fisher v. State, 52 Neb. 531, 72 N. W. 954; Bartley v. State, 53 Neb. 310; Holman v. State, 58 Neb. 297, 78 N. W. 641; Thomson v. State, (Wyo.) 130 Pac. 850).

David H. Craig, Judge. The action was brought by the Iowa State Savings Bank, a corporation, against Joseph Henry and others! There was a verdict and jitdgment for the defendants and the plaintiff brought error. The material facts are stated in the opinion. The notes sued on were negotiable instruments. (Cuda-hay Pack. Co. v. Bank, 134 Fed. 538; Crawford's Neg. Inst. Daw, (2nd Ed.) Sec. 320; Trust Co. v. Dong, 120 Pac. 291; Bank v. Buttery, 17 Ann.

<p>Appeal and Error — Briefs—Failure to File — Dismissal.</p> <p>1. A petition in error having been filed in a criminal case April 24, 1912, and no brief being filed in the case for the plaintiff in error, but a motion to dismiss for failure to file and serve brief being- filed September 29, 1913, and counsel for plaintiff in error not appearing to resist the motion, a dismissal of the case is proper.</p>

David H. Craig, Judge. Vincenzo Murdica was charged with having killed and murdered one John Giachino. He pleaded not guilty and filed an affidavit for change of judge, and subsequently an affidavit for change of venue. The District Judge, against whom the affidavit for change of judge was directed, heard and determined the motion for change of venue adversely to defendant, over his objection, and to which ruling the defendant excepted. .

David H. Craig, Judge. Tony Aspoli was charged with the crime of murder and convicted, and brought error. The material facts are stated in the opinion. Prejudicial error was committed by the presiding judge of the district in declining to rule on the motion for change of judge at the time the same was presented, and in subsequently overruling the motion for a change of venue.

Error .to the District Court, Raramie County; Hon David H. Craig, Judge. The action was brought by Thomas D. Holt against the City of Cheyenne to recover damages for an alleged deprivation of water and water rights. A general demurrer to the petition was sustained, and thereupon judgment was rendered in favor of the defendant. The plaintiff brought error. The material facts are stated in the opinion.

William C. Mentzer, Judge. Action by Robert N. Grace against the Union Pacific Railroad Company. From a judgment in favor of the plaintiff the defendant brought error. Heard on motion to dismiss, In moving to dismiss an appeal on the ground that the time for appealing had expired before the service of notice thereof a respondent stands upon a strict right and must show a strict and technical compliance with the statute On his part to entitle him to the relief sought.

William C. MenTzer, Judge. The action was brought by John W. Hopper and Edward T. Bartley, as co-partners, doing business under the firm name and style of Hopper & Bartley, against Charles Becker and Henry Becker to establish and enforce a mechanic’s lien. From a judgment in favor of the plaintiffs the defendT ants brought error.

Charles E. Winter, Judge. The action was brought by H. G. Nickerson and others, as taxpayers of Fremont County, and in behalf of all the taxpayers of the County, to recover from Loren E. Wins-low, an alleged excess of salary received by him as County and Prosecuting Attorney of said County. From a judgment in favor of the defendant the plaintiffs brought error. The defendant’s salary is fixed by the salary act of February 17, 1911.

Percy W. Metz, Judge. The material facts are stated in the opinion. In a prosecution for the sale of liquor on Sunday, in violation of the statute prohibiting a sale on that day by a licensed liquor dealer, the State must confine its proof to the charge, and must show by competent evidence that the offense was committed on the day named in the information.

David H. Craig, Judge. The material facts are stated in the opinions. The power of the District Court to grant letters of administration is purely statutory, and the District Court in this case was without jurisdiction to appoint Mary Barrett as administratrix, for the reason that there was no. petition on fife for her appointment, and no opportunity was given to interested persons to file objections thereto. (Comp. Stat. 1910, Sec. 5513; Dugan v. Super.

Original application for writ of review. The petitioner was William H. Kelsey, and the District Court of the First Judicial District, sitting within and for the County of Platte, was named as respondent. The petition challenged the jurisdiction of said court to render a certain judgment' committing the petitioner’s daughter, a girl fourteen years of age, to the Home of the Good Shepherd for girls at Denver, Colo.

Roderick N. Matson, Judge. The material facts are stated in the opinion. The court was without authority to change or modify the finding of facts after the expiration of the term at which the judgment .was entered and after execution had issued thereon. (Bethel v. Bethel, 6 Bush. (Ky.) 65; Barber v. Biloxi, 25 So. 298; Peterson v. Bank, 88 Ill. App. 190; Doe v. Min. Co., 60 Fed. 643; Buckles v. Bank, 63 Ill. 268; DeCastro v. Richardson, 25 Cal. 49; Horner v. Horner, 37 Ill.

Error -to the District Court, Sheridan County; Hon. Carroll PI. ParmeleE, Judge. The action was brought in the District. Court by Pike & Richardson, a co-partnership, and one O. H. Richardson, against the City of Sheridan for the recovery of a money judgment. From a judgment for defendant the plaintiffs brought error. The material facts are stated in the opinion. Under the pleadings there was an issue of fact to be tried.

Carroll H. ParmjjliJN, Judge. The action was brought by Ethel Brown against Robert E. Brown for separate maintenance, and from a judgment in favor of the plaintiff the defendant brought error.

Original proceeding in mandamus. The petition was filed in the name of the State of Wyoming, on the relation of The Mitchell Irrigation District, a corporation, against A. J. Parshall, State Engineer; Frank S. Knittle, Superintendent of Water Division No. One; C. W. Stroud, Superintendent of Water Division No. Two; G. Ralph Hoover, Superintendent of Water Division No. Three, and C. E. Howell, Superintendent of Water Division No. Four, constituting the Board of Control,…

Roderick N. Matson, Judge. Alexander B. Gillespie brought the action against the Wheatland Industrial Co., a corporation, to recover damages for the death of cattle belonging to the plaintiff caused by their falling into an open ditch upon uninclosed land owned, by the defendant. From a judgment for the defendant the plaintiff brought error. The other material facts are stated in the opinion.

William C. Mentzer, Judge. The Little Horse Creek Cattle Company, a corporation, brought the action against Ray K. Olds, as County Treasurer of Laramie County, to enjoin the sale of certain State land for taxes; the land being in the possession of plaintiff under a certificate of purchase. Upon the submission of the case on the pleadings and an agreed statement of facts judgment was rendered for the plaintiff, and the defendant brought error.

Carroll H. ParmRLRR, Judge. On Rehearing. For former opinion, see 21 Wyo. 163, 129 Pac. 1024. The facts will he found stated in the former opinion reported in 21 Wyo. 163, and in that report of .the case will be found an abstract of the briefs on the original hearing. A servant who understands and appreciates the fact that there is danger is put upon inquiry, and he proceeds thereafter at his peril and assumes the risk.

David H. Craig, Judge. The action was brought by P. R. Turner Real Estate Company against Thomas W. Anson and Vinnie Anson. A demurrer to the petition was sustained, the plaintiff refused to plead further, and thereupon judgment was rendered for the defendants dismissing the action. The Plaintiff brought error.

V. J. Tidball, Judge. The action was brought by Robert J. Cowper, Aiigusta Cowper, and the City of Laramie against A. J. Parshall, as State Engineer; Frank S. Knittle, as Superintendent of Water Division No. One, and Carson Adams, as Water Commissioner, to enjoin the closing of the headgate of an irrigating ditch. Judgment was entered for the plaintiffs granting the injunction prayed for, and the State Engineer and Division Superintendent brought error.

V. J. Tidball, Judge. The action was brought by A. Halbert Ford against Charles H. Townsend and The Stockmen’s National Bank, of Casper, Wyoming. From a judgment in favor of the defendants the plaintiff brought error. Heard on motion to dismiss. The Supreme Court rule providing for dismissal when plaintiff in error has failed to file and serve his brief in time has been strictly enforced.

Volney J. Tidball, Judge. The material facts are stated in the opinion. Five years elapsed after the entry of the final rule or judgment in the condemnation proceeding before any effort was made by the defendants to revive it by insisting upon a jury trial. That final rule stands unchallenged. It has not been reversed or vacated, and it is now too late to grant a jury trial in the matter. That the rule thus entered was a final order reviewable on error must be conceded.

Carroll H. Parmulb®, Judge. The material facts are stated in the opinion. The rights and obligations of the parties became merged in the second contract, which superseded the first. As Wilson had been in default under the first contract, and had obtained an extension of time to make the deferred payments, there was ample consideration for his entering into the second contract and assuming the additional obligations thereof.

William C. Mrntzrr, Judge. The action was brought by Robert N. Grace against the Union Pacific Railroad Company. Upon a trial to the court, without a jury, judgment was rendered in favor of the plaintiff, and the defendant brought error. The material facts are stated in the opinion.

Carroll H. Parmslss, Judge. The material facts are stated in the opinion. The alleged oral contract was too indefinite and uncertain to be enforced in equity. It is also unenforceable because within the statute of frauds. Libby and Hinrichs had nothing more than a license revocable at pleasure, and it was revoked upon the sale of portions of the lots. The grantees could not be bound by the oral agreement in the absence of definite notice thereof prior to their purchase.

William C. Mentzer, Judge. The action was brought by John Morton against William Reynolds, and from a judgment in favor of the plaintiff, the defendant brought error. Heard on motion to dismiss. The Supreme Court will not recognize an agreement of counsel to dispense with a compliance with a rule of court. (Spencer v. McMaster, 3 Wyo. 105; Robertson v. Shorow & Co., 10 Wyo. 368). An order extending the time for filing and serving brief is indispensable to save default.

William C. MRntzRr, Judge. The action was brought in the District Court by Rachael E. Gray against the Stockgrowers’ Bank of Wheatland, and from a judgment in favor of the plaintiff the defendant brought error. Heard on motion of plaintiff in error to withdraw the bill of exceptions for amendment.

P. W. Metz, Judge. Action by M. H. Newcomer against John H. Wamhoff. Prom a judgment for the plaintiff, the defendant brought error. The material facts are stated in the opinion. The finding that there was no fraud absolves the plaintiff in error from liability on the cause of action stated in the petition. The judgment does not follow the petition, for the action is in tort and the judgment is for breach of contract. (Pollock on Torts, (6th Ed.) 273; Pomeroy’s Code Rem.

William C. Mrntzrr, Judge. The action was brought by Reuben Stockwell and Jess W. AVhite against William Taylor. Judgment was rendered for the plaintiffs and the defendant brought error. The material facts are stated in the opinion. The action is one to recover certain funds and the value of certain property transferred to the plaintiff in error, defendant below, under threats of criminal prosecution.

Carroll I-I. ParmElee, Judge. The action was brought by Ernest A. Kester against William E. Wagner to recover damages for an alleged trespass, the plaintiff claiming exemplary as well as actual damages. There was a verdict for the plaintiff, including exemplary damages, and a new trial was granted on motion of the plaintiff, on the refusal of the defendant to remit the amount of the exemplary damages.

V. J. Tidball, Judge. The material facts are stated in the opinion. The writing upon which the claim for rent is based is insufficient to sustain the action, unless its defects can. be cured by reference to some previous contract. But it is so uncertain in its reference to another contract that it fails to designate the former lease between defendant and another party, under which he held the land for the previous year.

David H. Craig, Judge. The material facts are stated in the opinion. The suit being based on a written contract, in which the terms of the agreement are stated in clear and unequivocal language, the rights and obligations of the parties must be measured thereby. Specific performance was denied for the reason, as indicated in the findings, that there was a right of homestead in some portion of the lands, without evidence to show its exact location.