Volume 23 — South Dakota Reports

Hon. James II. McCoy, Judge. Action by the Peever Mercantile Company against the State Mutual Fire Association of Canton, S. D. Judgment for plaintiff, and defendant appeals. A reformation of a written instrument will -not be awarded on account of a mere unilateral mistake unaccompanied by fraud. 6 Pomeroy’s Equity Jurisprudence, § 676, being 2 Pomeroy’s Equitable Remedies; notes to Williams v. Hamilton, 65 A. S. R. 490-522.

Hon. Joseph W. Jones, Judge. Action by the Iowa National Bank of Ottumwa, Iowa, against Paul P. Sherman and another, partners as Sherman & Bratager. Prom a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Lortng E. GaRRy, Judge. Action by George Lumley and others against Ira Miller and another. From a judgment for plaintiffs and from an order denying a new trial, defendants appeal. A pledgee may sell or assign either the property or his interest in it 'to a bona fide purchaser, who will be allowed to hold the property until extinguishment'of the original obligation. The purchaser under such circumstances succeeds to the rights of the original pledgee.

<p>Appeal from Circuit Court, Brown County. Hon. James H. McCoy, Judge.</p> <p>Action by the St. Paul, Minneapolis & Manitoba Railway Company against N. J. Howard and others. From a judgment for defendants, plaintiff appeals.</p>

Hon. Feank B-Smith, Judge. Action by Anna Gaffney against .Louise M. Mentele, executrix .of William H. A- Kroeger. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Joseph W. Jones, Judge. Election contest by George J- Danforth áfgainst George W. Egan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Frank B. Smith, Judge. Action by the City of Chamberlain, a municipal corporation, against H- Quarnberg. A judgment was rendered for defendant, after which damages were assessed against plaintiff and its sureties for breach of an undertaking given for a restraining order, and plaintiff appeals.'

<p>A verdict on conflicting evidence -will not be reviewed further than to determine whether the successful party has given sufficient legal-evidence to sustain the verdict without regard to the evidence given by his opponent.</p> <p>Plaintiffs agreed- with -defendant to assist him in procuring for sale on commission, lands in H. county, and in making sales for which plaintiffs were to receive $1 an acre on the land previously listed by defendant and one-half of the commissions -of the sale of any lands subsequently listed hy either of the parties. Held that, if either of the plaintiffs rendered any assistance in listing land that was subsequently sold .by either plaintiffs or defendant, plaintiffs were entitled to 'compensation at the rate of $1 an acre if the land sold had been previously listed by defendant, otherwise to one-half the commissions received on the sale.</p> <p>In an action for a division of brokers’ commissions, whether plaintiffs received from defendant $100 in full settlement or merely on account of commissions to which they were entitled held for the jury.</p>

<p>Appeal from Circuit Court, Brookings County. Hon. J. H. McCoy, Judge.</p> <p>Libel action by O. W. Rood against Paul Dutcher and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals.</p> <p>The defense of privileged communication, in actions of libel, is a new matter and must be specially pleaded. Bliss on Code Pleading, Sec. 361. In regard to the justification that the publication was privileged, the code has made no change. The facts that will thus shield the defendant are, as they always were, new matter to be pleaded. 13 Enc. Pleading & Practice 88; Sec. 4; Fresh v. Cutter, Mr. 87; Quinn v. Scott, 22 Minn. 456; Gorden v. Kieler, 51 Barb. 455; Wachter v. Quinzer, 29 N. Y. 547; Hess v. Sparks, 25 Pac. 480 Kan.; Harper v. Harper, 10 Bush (Ky.) 455; Goodwin y. Daniels, 7 Allen 61; Hawkins v. Globe Printing Co., 10 Mo. App. 174; Cummerford v. Ry. Co., 164 Mass. 15. The plea of privilege should allege that the defendant made the communication on a lawful occasion, believed it to be true and without malice, or at least, bona fide. 13 Enc. Pleading & Practice 84, Sec. 4; O’Donaghue v. McGovern, 23 Wend. 26; Fresh v. Cutter, 73 Md. 87. The statutory definition of a privileged communication applicable to this case is one “made without malice to a person interested therein by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive of the communication innocent.” Rev. Civ. Code 1903, § 31. True criticism never imputes or insinuates dishonorable motives unless justice absolutely requires it, and then only on the clearest proof. Odgers Libel & Slander, 33. The critic never takes advantage of the occasion to gratify private malice or attain any other object beyond the fair 'discussion of matters of public interest and judicious guidance of the public taste. He will carefully examine the production before him and then honestly and fearlessly state his true opinion of it. Id. The term quack applied to a physician, in his (professional capacity, is libellous per se and imports malice. Elmergreen v. Horn, 91 N. W. 973 Wis.; 13 Enc. Law, 314 note; Clark v. Ereeman, 11 Beav. 112; Odgers on Libel & Slander, 27. Publishers of newspapers have no immunity from liability for publishing a libel other or different from other persons. The charge of the trial court, in dwelling upon' the rights and duties of newspaper publishers, in connection with the definition of privilege also contained in said charge, and which definition is broader than the statutory definition above quoted, was intended to and probably did lead the jury to believe that newspapers have special immunities from liability in libel cases. 13 Enc. Law, 316, § 4; McGuire v. Vaughn, 64 N. W. 47, Mich.; Gray v. Simes, 77 N. W. 204 Minn.; Cooley on Torts, 219; Usher v. Lawrence, 20 Me. 9.</p> <p>A privileged communication is one made in good faith upon any subject matter in which the party communicating has an interest in reference to which he has, or honestly believes he has, a duty, to a person having a corresponding interest or duty and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable. Newell on Libel & Slander, pp. 388, 389. The defendants honestly believing after careful investigation that the statements contained in the Estelline Tribune in the article in question, which they copied verbatim therefrom, were not only justified, but that they owed the duty to their readers of publishing it. While this duty was not perhaps, strictly speaking, a legal one, it was nevertheless of a moral or social character of imperfect obligation, which was sufficient to establish the privileged nature of the occasion. Newell on Libel & Slander, 389; 18 Ency. of Law, 2d Ed. 1029. It is not necessary, however, that a communication, to be privileged, should be given in answer to an inquiry. The rule has been broadly stated that where a person is so situated that it becomes right in the interest of society that he should tell to a third person certain facts, information given bona fide and without malice is privileged. 18 Ency. of Law, 2d Ed. 1032; Subd. 3, Sec. 30, Rev. Civ. Code. At common law the truth of the charge will be a sufficient justification apart from any question of good faith or want of malice on the part of the defendant, and independently of ,the time when the knowledge of the truth came to the defendant. 18 Ency. of Law, 2d Ed. 1068; Cox v. Sfrickland, 101 Ga. 482.</p>

<p>A complaint attempting to join an action tor mandamus with an application for injunction was demurrable for misjoinder of causes of action.</p> <p>In an action against a county and its officers to compel defendants to put alleged omitted property on the tax list, a complaint which failed to state the name of any person, firm, or corporation whose property was omitted, or to point out any particular property that was omitted, was insufficient.</p>

<p>Appeal from Circuit Court, Moody County. Hon. Joseph W. Jones, Judge.</p> <p>Action by H. A. Hendrickson against J. H. Anderson. From a judgment for defendant and an order denying a new trial, plaintiff appeals.</p>

ITon. W. G. Riae;, Judge. Action by David T. Lyon and others, partners as Lyon Bros., against Innocent Bertolero and another. From a judgment refusing to exonerate bail and to amend the judgment for plaintiffs, defendants appeal.

Hon. J. H. McCoy, Judge. Action by Joseph R. Richardson against Charles A. Howard. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. RoriNG E. Garry, Judge. Action by Jakob Traxinger against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order granting a new trial, defendant appeals. The court had no power or authority after the lapse of nine months to grant a new trial in this case on his own motion. Par-rott v. City of Hot Springs, g S. D. 202; Clement v. Barnes, 6 S. D. 483. No notice of intention to move for a new trial was ever served in this case.

Hon. J. H. McCoy, Judge. Action by G. A. Wood and another against A. C. Dodge. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. The liability on an oral promise in respect to transactions for the benefit of a third person is always tested by .inquiring to whom the sole credit was given; if any credit whatsoever was given to the third person so that he was in any degree liable, the oral promise of the other party is not valid.

Hon. J. Action by C. N. Fosmark against the Equitable Fire Association. From a 'judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Appeal 'from Circuit Court, Brown County. Hon. J. H. McCoy, Judge. Action by W. G. Kenny and another against K. McKenzie. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Circuit Court, Davison County. Hon. Eeank B. .Smith, Judge.</p> <p>Action by F. A. Bidwell against Patrick Smith and others. From the judgment, plaintiff appeals.</p>

<p>Hon. Torino E. Gappy, Judge.</p> <p>On rehearing.</p>

Hon. E. G. Smith, Judge. Action by M. E. Quinn against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. No damage can insue, nor can the owner be interfered with by any consideration of injury to other lands which may be occasioned by the flow of surface water in consequence of lawful appropriation of land by its owner to a particular use or mode of enjoyment. Gannon v. Hargadon, 92 Mass. 106; Sweet v. Cutts, 9 Am.

lion. Lfivi McGee, Judge. Action by Orpha Miller against William McConnell and another, copartners as McConnell & Sampson. Erom a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Gborg® H. Marquis, Judge. Action by S. B. Griffing and another against E. S. Dunn and others. From a' judgment for plaintiffs and an order denying a néw trial, defendants appeal. The good will of a business is the expectation of continued public patronage. Sec. 893 Civ .Code. Only the one who sells the good will of the business can agree to refrain from carrying on a competing business within a specified place.

<p>Appeal' from Circuit Court, Pennington County. Pión. Devi McGee, Judge.</p> <p>Action by Olof Alfred Olson against Robert W. Day. From a judgment for plaintiff, defendant appeals.</p>

Original application for mandamus by the State, on the relation of the Dakota Central Telephone Company and another, against the City of Huron, and the Mayor and City Council thereof.

<p>An error which the appellant fails to present in his brief will be treated as abandoned.</p> <p>Under Code Civ. Proc. § 90, providing that persons liable severally for the same debt may be included in the same action, an original obligor and his guarantor may be joined as defendants in an action on the contract.</p> <p>Under Code Civ. Proc. § 101, providing that except in actions to recover a statutory penalty or forfeiture, or an action against a public officer, the action shall be tried in the judicial subdivision in which the defendant, or defendants, or any of them, shall reside or mav be served, an action on a contract against the original obligor and his guarantor may be brought in the county where either of the defendants resides, subject to the right of the court, where the action is begun in the .county in which the guarantor resides, to order a change, if satisfied upon a proper showing that the claim against the guarantor is made for fraudulent purposes.</p> <p>An action against an original obligor and his guarantor was brought in the county in which the guarantor resided, and the other defendant applied for a change of venue on an affidavit stating that the claim of guaranty was false, and made in order to bring the action in the county in which the guarantor resided, and a counter affidavit was filed by plaintiff asserting the bona fides of his claim. Held, that the court was justified in refusing a change of venue.</p>

Hon. Ryman T. Boucher, Judge.. Action by Charles Batelle against Kate F. Knight and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

Hon. FRANK 'B. Smith, Judge. H. J. Vierck was convicted of burglary, and appeals. The possession of stolen goods by the defendant and the evidence of track-s going in the direction of the defendant’s home and the fact that the defendant had been around the store on the evening before the burglary, was not enough to sustain a conviction for burglary. State v. Tilton, 24 la. 117; State v. Sheffer, 59 la., 290; Jones v. State, 6 Parker, 125; Whart. Crim.

GüorgU H. MaRQuis, Judge. ■ Boyd H. L,a Mont was convicted of rape, and appeals from the judgment and an order denying a new tkial.

Hon. Joseph W. Jones, Judge. Habeas corpus by A. P. Barnes against C. M. Nelson. From a judgment for defendant, plaintiff appeals. When a party arrested for extradition under the Executive’s warrant, seeks his liberty on habeas corpus alleging th,at he is not ithe person against whom such warrant is issued the burden of proof to show his identity, is upon the state seeking his deportation.

Hon. Champs S. Whiting, Judge. Action by Margaret E. Cornelius against Allie E. Ferguson and another, in which Elsie J. Lyrich intervened. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Hon. Chas. S. Whiting, Judge. Action by the L. Lamb Lumber Company agai¡nst Flwpod B. Roberts and another. From a judgment for defendants, and' from an order denying a ne'w trial, plaintiff appeals.

Hon. J. H. McCoy, Judge. Action-by C. H. Grant, trustee for O. O. Brantseg, a bankrupt, against the Powers Dry Goods Company. Judgment for plaintiff, and defendant appeals. The general rule is that a state of facts once shown to exist is ordinarily presumed to exist until the contrary is sho-wn, but this presumption is not retroactive. Da,wson on Presump,, p. 238; Martyn v. Curtis, 67 Vt. 263. One can be adjudged a bankrupt under the Bankruptcy Act and yet not be insolvent.

<p>Appeal from Circuit Court, Hughes County. Hon. Lyman T., Bouchbr, Judge.</p> <p>Harry Holburn was convicted, and appeals.</p>

<p>Hon. George H. Marquis, Judge. ,</p> <p>On rehearing.</p>

<p>Appeal from Circuit Court, Gregory County. Hon. E. G. Smith, Judge. '</p> <p>Action by Edwin M. Starcher against the Incorporated Town of Gregory. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Clark County. Hon. George H. Marquis, Judge.</p> <p>Action ,by Hans T. Hanson against Almyra Kitterman and others. Judgment for plaintiff, and defendants appeal.</p>

Hon. LEvx McGe®, Judge. Action by the Byrne & Hammer Dry Goods Company against the Willis-Dunn Company and others. Judgment for defendants. Plaintiff appeals. A party is presumed to intend the natural and necessary consequence .of his own acts .and when prejudice to the rights of creditors results the act is constructively fraudulent .notwithstanding good motives or intentions. Manee v. McNab Co. (Tenn.), 20 S. W. 426; Schable v. Ardner (Mich.), 56.

<p>Hon. Joseph W. JONES, Judge.</p> <p>On reargument. Former opinion adhered to.</p>

Hon. Eevi McGee, Judge. Action by the Magpie Gold Mining Company against James C. Sherman. 'From a judgment f.or plaintiff, defendant appeals. A court of equity has no jurisdiction to remove the legaily elected or appointed officers of a corporation, in the -absence of a statute, .on the ground of mismanagement of the affairs of the corporation, or neglect or other cause.

Hon. Chas. S. Whiting, Judge. Action by Bo-lte & Jansen against the Equitable Eire Association. Erom a judgment for plaintiffs, defendant appeals.

<p>Hon. FkaNic B. Smith, Judge.</p> <p>On rehearing.</p>

Hon, Levi Mc-.CES, Judge. Mandamus by Joshua J. Wolf, whose interest is held now and .owned by Fred H. Rugg, receiver of Hulsf & Price, against Albertine Sneve and others, constituting the School Board of Spring Creek School District, No. 14, of Custer County. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Court, Rymian County. Hon. FRANK B. Smith, Judge. Action by Enoch Halvorsen against Per Myren. From a circuit court judgment, affirming a judgment of a 'justice of the peace, in favor of plaintiff, defendant appeals.

H-on. Joseph W. Jones, Judge. Action by Samuel Kennedy and another against M!ary Garri-gan and another. From an order overruling a demurrer to the complaint ,the defendant named appeals.

Hon, Levi McGee, Judge. Action by Patrick B. McCarthy against the First National Bank of Rapid City, S. D. Judgment for defendant. Plaintiff appeals.

Hon. Gborg® H. Marquis, Judge. Ole Johnson was convicted of crime, and from the judgment and .an order denying a new trial he appeals.

<p>Sess. Laws 1905, p. 219, c. 183, § 4, requires tire county cattle inspector to inspect cattle, and, if it is found that they are infected or have been exposed, ,to cause them to be quarantined, and to notify the owner and instruct him as to their treatment, and if the owner fails to comply with the instructions of the inspector for more than i0 days the inspector may treat the cattle as he deems necessary. Held, that where no inspection of plaintiff’s.cattle was made, and no instructions were furnished plaintiff, the inspector had no authority to notify plaintiff to treat the cattle, or, on his failure to do so, to have them treated under the inspector’s directions.</p> <p>The State Live Stock Commission had no power to authorize a county cattle inspector to proceed otherwise than as provided by the statute regulating the duties of such inspector and prescribing the method of performing them.</p> <p>In an action to enjoin a county cattle inspector from proceeding against plaintiff’s herd, plaintiff alleged that he also sued on behalf of other stock owners similarly situated, praying that defendant be enjoined from seizing the cattle of plaintiff as well as those of his associates. Defendant did not demur to the complaint, move to strike out the allegations respecting the associates, or in his answer raise any issue as to plaintiff’s right to -bring the action in behalf of them; such question being raised' for the first time on appeal. Held, that under the circumstances, and in view of the further fact that defendant stipulated that a decree granting a perpetual injunction might be entered without notice, the trial court was justified in enjoining defendant from proceeding against the cattle of both plaintiff and- his associates.</p>

<p>Appeal from Circuit Court, Lawrence County. Hon. William G. Ricl, Judge.</p> <p>William K. Erazer was convicted of .an assault with intent to kill, and appeals.</p>

<p>Appeal from Circuit Court, Kingsbury County. Hon. Chas. S. Whiting, Judge.</p> <p>Action by Sidney L. Bunday against E. W. Smith, Mayor of City of Arlington, and others. From ,the judgment, plaintiff appeals.</p>

■ Hon. GborgR H. Maequis, Judge. Action by the County of Brookings against P. J. Murphy, as county auditor. Prom a judgment for defendant, plaintiff appeals. Where the Constitution provides that the legislature shall prescribe the salary or regulate, prescribe or fix the salary of public officers, • this function cannot be delegated to any other body or tribunal.

<p>Appeal 'from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Sigvart PI. Eglancl was convicted of assault with intent to commit rape, and appeals.</p>

Hon. FRANK B. Smith, Judge. Action by M. A. Hingtgen. against George W.' Thackery and another fo'r certain land. From a judgment for plaintiff, and from an order ‘denying a .new trial, defendants appeal. A deed executed and acknowledged by the grantor, with the name of the grantee left blank, is invalid for any purpose until the name of a grantee is inserted therein.

<p>The office of an. assignment of error is to point out some specific error, and the complaining party must lay his finger upon the precise error complained of.</p> <p>An assignment of error was ias follows: “The court erred in admitting testimony, excluding testimony, striking out and in refusing to strike out testimony, all as shown by the assignments of error herein, numbered from 1 to 3'9, inclusive. * * * The following charge, * * * in view of the evidence of the case, was manifest error: [Followed by part of the charge.]” No exceptions' to rulings complained of were alleged, nor were the pages of the abstract nor of the bill of exceptions given where the rulings ¡and exceptions could be found. Held, that the assignment of error was too vague ¡and indefinite to be considered.</p>

Appeal 'from Circuit Court, Hutdhinson County. Hon. E. G. Smith, Judge. Action by' M. Russell (against Anna P. Wright .and another. Judgment for plaintiff. Defendants appeal. The mortgage is merely an appurtenance to and security for ■the note. The latter is the evidence of the debt; it is the obligation of the debtor to pay a specified sum of money. The mortgage is given to secure the payment of the note, and is therefore only the mere incident following the debt.

Hon. E. G. Smith, Judge. Action by Rouise Smith against the City of Yankton. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. The obligation of keeping the streets in a reasonably safe condition does not extend to the removal of ice when -it constitutes no other defect except slipperiness. Henkes v. City, 44 N. W. 1026. Hausmann v. City, 21 L. R. A. 263.

Appeal’from Circuit Court,’Hand’County. Hon. Loring E-GaRRy, Judge. Action by S. E. Weitzel, administrator of C. A. Sanford, deceased, and others, against E. J. Leyson and another, to recover on account of a sale of land by defendants to decedent. Erom a judgment for plaintiffs and from an order denying a new trial, defendants appeal.

Hon. J. ,M. McCoy, Judge. Action by John Richty against S¡. Daggett. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.

<p>Rev. Civ. Code, § 2322, provides that in actions for forcibly ejecting or excluding a ¡party from .possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to him by the action complained of. Held that, where defendant was holding the possession of property under a claim of right, he was not liable under such section.</p> <p>Under Rev. Civ. Code, § 2313, providing that the detriment caused by the wrongful occupation of real property, etc., is deemed to be the value of the use of the property for the time of such occupation, etc., one occupying real property wrongfully, and not under a lease or agreement to pay rent, is required to compensate 'the owner and to pay him therefor the damage or detriment caused by such occupation and use of the premises.</p> <p>Underpaid section, the owner in such'case may waive the tort or trespass, and recover the actual value and use of the property during the time its possession is iwitheld from him.</p> <p>Under said section, where the evidence showed that defendant unlawfully occupied plaintiff’s property and cropped the same, and that the value of plaintiff’s interest in the crop or rental was by custom one-fourth of the value of the crop, a judgment for such sum in plaintiff’s favor was properly rendered.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. JojUph W. Jonbs, Judge.</p> <p>Action by Nora M. Miles against the Penn Mutual Fife Insurance Company of Philadelphia. Judgment for defendant, and plaintiff appeals.</p> <p>In an action to recover the amount of a policy of insurance the defense of suicide to- avail the Company must show that every reasonable hypothesis of accidental death is excluded by the evidence. Phillips v. Insurance Co., 21 Am. Rep.'549; Sorenson v. Pulp Co., 14 N. W. 446; Boynton v. Ins. Co.,. 52 R. R. A. 687; Mut. Rife v. Wiswell, 35 R. R. A. 260; Standard Rife v. Thornton, 49 R. R. A. 116; Courtemanche v. Forresters, 64 R. R. A. 608; Travelers’ Ins. Co. v. Nicklas, 41 At. 906; Baltimore R. R. Co. v. Randrigan, 191 U. S.; Home Benefit v. Sergeant, 142 U. S. 691; Globe Accident Co. v. Gerisch, 45 N. E. 563. A general .verdict by which the jury find generally for one party or the other must be construed with reference to the pleadings and understood as a decision by the jury of all Questions presented by the issues in favor of the party named. Civ. Proc. Sec. 270; Greenlee v. Schoenheit, 37 N. W. 600; Rosenfield v. Bee Pub. Co., 75 N. W. 84; Holt v. Van Epps, 1 Dal?. 198; Eitzer v. McCannon, 14 Wis. 63; Krause v. Cutting, 28 Wis. 655; Mendelsohn v. Righter Co.-, 40 Cal. 657; Hutchinson v. Superior Court, 61 Cal. 119;' Pierce v. Schaden, 62 Cal'. 283; Imperial Ins. Co. v. Kiernan, 83 Ky. 468; 22 Ency. PL & Pr. 915; Goggan v. Evans, 33 S. W. 891; Walston v. Walston, 24 S. W. 951.</p> <p>The contract of insurance exempted the respondent from all liability in case the insured committed suicide within a certain specified time from the date of the policy, whether sane or -insane. If the insured violated this condition, there can be no recovery against the respondent .on the policy, and the question whether at the time of his death he was sane or insane is immaterial. Bigelow v. The Berkshire Rife Ins. Co., 93 U. S. 284; Clarke et al. v. The Equitable-Rife Assuranec Society, 118 Fed. 374; De Gogorza v. The Knickerbocker Rife Ins. Co., 64 N. Y. 232; Supreme Rodge Order of Mutual Protection v. Gelbke, 198 Ill. 365; Travelers' Ins.. Co. v. McConkey, 127 U. S. 661: Mutual Reserve Fund Rife'Association v. Payne, 32 S. W. 1063; Northwestern Mutual Rife Ins. Co. v. Churchill, 103 Ill. App. 159; Dickerson v. The Northwestern'Mut.' Rife Ins. Co., 200 Ill. 270. When a person is found dead tlie ,pre-' sumption is that death was natural or accidental, but where there is additional evidence as to the cause of death, no such presumption is to be indulged in, but the question as to the cause of death becomes one of fact for the jury. Washfrarne v. The Nat’l Acc. Association, xo N. Y. Sup. 366; Mallory v. The Travelers Ins. Co., 47 N. Y. 52; Burnham v. The Interstate Casualty Co., 117 Mich. 142; The Home Benefit Association v. Sargent, 142 U. S. 691; Sharland v. The Washington Rife Ins. Co., xoi Fed. 206; Tenfold v. The Universal Rife Ins. Co., 85 N. Y. Sup. 317; Witlatch v. The Fidelity & Casualty Co., 24 N. Y. Sup. 537; Hale v. The Rife Indemnity & Investment Co,. 61 Minn. 516; Aetna Rife Ins. Co. v. Kaiser, 104 Ky. 539; Seybold et al. v. The Supreme Tent of the Knights of the Maccabees, 83 N. Y. Sup. 149; Agen v. The Metropolitan Rife Ins. Co., 105 Wis. 217; Parish et al. v. The Mutual Benefit Rife Ins. Co., 49 S. W.- 153; The Supreme Rodge of the Knights of Honor v. Fletcher, 29 Southern, 528; Johns et al. v. The Northwestern Mutual Relief Ass’n, 90 Wis. 332; Ingra-ham et al. v. The National Union, 103 la. 395.</p>

<p>Appeal- from Circuit Court, Kingsbury County. Hon. Chas. S. Whiting, Judge. ' ..."</p> <p>Action by-the Chicago & Northwestern Railway Company against J. H. Rolfson, as Treasurer, and others. From a judgment for defendants, ■ plaintiff appeals.</p>

<p>Hon. Joseph' W. Jones, Judge.</p> <p>On rehearing. Rehearing granted.</p>

Hon. W. G. Ricb, Judge. Action by John B. Empson against the Reliance Gold Mining-Company. From a judgment for plaintiff, and from an • order denying a new trial, defendant appeals.

Hon. Lyman T. Bouci-ier, Judge. Action by James K. Breeden against the fEtna Life Insurance Company. From a judgment for plaintiff,' defendant appeals. Soliciting agents Have no authority to bind the company by contract of insurance nor agents having only authority to countersign and deliver policies issued by the company can' waive the requirements in such policies as to notice and proofs. 19 Cyc. p. 858; Ostrander Fire Ins. >§ 227; Harrison v. Ins.

<p>Where the only assignments of error are to the refusal to admit evidence, and to errors in instructions, and-the only exception in the record is -to the overruling of the motion for new trial, there is nothing which the appellate court can review.</p>

<p>Appeal from Circuit Court, Turner County. Hon. • E. G. Smith, Judge.</p> <p>Action by the City of Centerville against Turner County. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Yankton County. Hon. E. G. Smith,Judge. . j ,</p> <p>Action by the Board .of: Education of the City- 'o.f. Yankton against School District No. 19, Yankton County. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal ¡from Circuit Court, Union County. Hon. Joseph W. Jones, Judge.</p> <p>Action by A. O. Mason against the Fire Association ..of Philadelphia. Judgment.for plaintiff, and defendant appeals.</p>

Hon. CharuJS S-Whiting, Judge. Action by Frederick W. Kammann against Lot Lee Barton and another. Judgment for plaintiff, 'and defendants appeal.

<p>Appeal from Circuit Court, Custer County. Hon. Lrví Mc-GRR, Judge.</p> <p>Action by W. H. Chambers against Henry Mittnacht and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p>

Appeal 'from Circuit Court, Sully County. Hon.-Lyman T. Boucher; Judge. Action by George Meadows and another against Lorenze Oster-kamp and others. Erom an order denying defendants’ motion to dismiss, they appeal.

Hon. Lyman T. Bouci-ier, Judge. .Gustave Kammel was convicted of manslaughter in the first degree, and he appeals. Proof that a witness was a licensed physician, without evidence of actual experience or deliberate study of the -subject, is insufficient to qualify him to testify’as an expert oh .the subject of poisoning in a criminal prosecution.

<p>It is within the discretion of the trial court to grant a new trial for insufficiency of evidence to justify the verdict, and, where a new trial has been granted, a stronger case is required to secure a reversal than where it has been denied.</p> <p>An Indiana corporation had an exclusive sales agent in Nebraska, which was in possession of buggies belonging to the principal. The contract of agency expired, and another .person who had taken possession of the former agent’s warehouse sold the buggies to a resident of South Dakota without the owner’s authority. HeM, that the Indiana corporation after the expiration of the contract of agency was transacting an interstate business so far as the buggies were concerned, and could bring replevin in South Dakota to recover them without complying with Rev. Civ. Code, §§ 883, 885, requiring a foreign corporation before doing (business in the state to file with the Secretary of State its. articles of incorporation and'to appoint a resident agent.</p>

Hon. Ryman T. Boucher, Judge. Action by the Northwest Thresher Company against John M-elilhoff and others. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.

<p>Appeal -from Circuit Cpurt Spink County. Hon. ChaRRUS S. Whiting, Judge.</p> <p>Action'by G. M. Watters against R. E. Dancey. Judgment for defendant, and plaintiff appears.</p>

Hon. Joseph W. Jones, Judge. Action by Abbie Phillips Sherriian and others against P. F. Sherman and others. Judgment of dismissal, and plaintiffs appeal. The right acquired by the power of eminent domain extends only to an easement in the land taken, unless the statute plainly provides 'for the acquisition of a larger interest.

Hon. J. H. McCoy, Judge. Action by the Acme Harvesting Machine Company against W. L. Hinkley and others. From an order overruling a demurrer to plaintiff’s complaint, defendants appeal.

GEORGE H. Mauquis, Judge. Action by the International Harvester Company of America against J. H. Hayworth. From a judgment for plaintiff and from an order denying a new trial, defendant appeals;

Hon. DANA R. Bailey, County Judge. Defendant in his argument takes the position that the defective fence was not the proximate cause of the accident, and contends that the only damage the defendant can be liable for, under this fence law, would have been his damage from injuries received by the cow in passing through the fence; and the defendant refers to section 544 in support of this contention,' calling attention to the fact that, where a railroad company neglects to…

Hon. Euvi McGRR, Judge. Action by 'John J. Parrar and another against the Yankton Eand & Investment Company, a corporation, and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Circuit Court, Butte County. Hon. W. G. Rice, Judge.</p>

Hon. Chas. S. Whiting, Judge. Action by John B. Geddi's against the .Northwestern Trust Company of Omaha, Neb., and others, in which Alexander Buchanan intervened. From a judgment for intervener, and an order denying a new trial, plaintiff appeals.

Hon. Whaiam G. RicR, Judge. Suit by 'Thomas Whittaker and others against the City of Deadwood and another. Decree for defendants, and plaintiffs appeal. The statute does not authorize the city council to pass a resolution of intention to do work, the description of which is to be furnished by plans and specifications yet to be prepared by .someone. Hews v. Reis, 40 Cal. 255; Schweisau v. Mahon, 60 Pac. 683-5.

<p>Appeal from Circuit Court, Davison County. Hon. Frank B. Smith, Judge.</p> <p>Action by C. M. Ink and another against Henry Rohrigi Judgment for defendant, and plaintiffs appeal.</p>

<p>On an application to set aside a default judgment for want ot jurisdiction, evidence held to justify a finding ttiat plaintiff resided at the place where the summons was alleged to have been served by leaving a copy with a person over 14 years of age found in charge of defendant’s dwelling house.</p> <p>A trial court acquires jurisdiction, if at all, through the proper service of summons, regardless of the return.</p> <p>Where a return on a summons was defective, but the affidavits on an application to set aside a default judgment showed that the summons was in fact legally served, the motion was properly denied.</p>

Hon. Frank B. Smith, Judge. Petition by P. F. Wickhem and others against the City of Alexandria. From a judgment for petitioners, and from an order refusing a new trial, respondent appeals.

<p>Appeal from Circuit Court, Lake County. Hon. Joseph W. Jones, Judge.</p> <p>Action by M. B. Stine against William Foster. Judgment for defendant, and plaintiff appeals.</p>

<p>Where the tax deed under 'Which defendant claimed was issued in August, 1897, and was fair on-its face, and there was no defect, jurisdictional or otherwise, in the procedure leading up to its issuance, an action to quiet title brought by the former owner on July 25, 190G, was barred by Rev. Pol. Code, § 2214, prohibiting such actions unless brought within tShree years of the recording of the tax deed.</p> <p>In absence of contrary evidence,. an erasure in a deed is pre-, sumed to have been made prior to, or contemporaneous with, its execution, and such presumption is stronger where the instrument is the act of a public officer, who is presumed to have done his duty.</p> <p>Rev. Pol. Code, § 2213, requires a tax deed to be executed by the county treasurer under his hand, etc., but does not expressly require a seal. Rev. Civ. Code, § 1243, abolishes all distinctions between sealed and unsealed instruments, and section 939- provides that the absence of. the grantor’s seal shall not impair the grant. Held, that as the statute abolished distinctions between sealed and unsealed instruments, except as to the statute of limitations, the absesnce of a seal from, a tax deed would not laffsct its validity, though the form prescribed by statute contained the word'“seal” after the treasurer’s name; the deed not being affected in any way by any statute of limitations.</p>

<p>Appeal from Circuit Court, Aurora County. Hon. Reank B. Smith, Judge.</p> <p>Condemnation proceedings -by the Chicago, Milwaukee’& St. Paul Railroad Company against George Mason and others. Prom the judgment, said Mason appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by F. H. Hollister against J.' G. Strahon, impleaded with others. Judgment in favor of defendant Strahon, and plaintiff appeals.</p>

Hon. Lyman T. Boucher, Judge. Suit by Annie M. McGeary against Ella' M. Brown and others. From an order permitting plaintiff to examine the books of defendant (Corporation, and from an order continuing the order for examination, defendants appeal. Neither at law or in equity has a party a right to make a general Isearch and examination for evidence among the private books and papers of his adversary. The-party should be examined as witness. Brevoort v. Warner, 8 How.

<p>On re-argument. Former opinion adherred to.</p>

<p>Appeal from Circuit Court, Marshall County. Hon. J. H. McCoy, Judge.</p> <p>Action by the Williams Bros. Lumber Company against J. E. Kelly and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Brown County. Hon. J. H. McCoy, Judge.</p> <p>G. C. Madison was convicted of selling intoxicating liquors without a license, and he appeals.</p>

<p>A challenge to the regular panel having been interposed by accused and allowed, an order directing the sheriff to -summon forthwith from the body of the county 24 citizens, possessing the qualifications of jurors, to serve as petit jurors for the pending term, was expressly authorized by Rev. Code Cr. Proc. § 3 03. •</p> <p>iCode Cr.’Pro'c. § 303, providing that, when a challenge to the regular panel is allowed, the court must discharge the jury and another, may be summoned for the same term forthwith from the body of the county or subdivision, or the judge may order a jury to be drawn and summoned' in- the regular manner, is not -in conflict with Const, art. 6, § 7, guaranteeing a- speedy public trial by an impartial jury out of the co.unty or district in. which the offense is alleged to have been committed. . ..</p> <p>That the sheriff’s name was indorsed on the information as a witness for the state-did not as a matter of law disqualify him to summon a new jury panel to.try accused. 1 ■</p> <p>That the name of the sheriff wa-s .indorsed on. an .information against accused as a witness for the state did not constitute implied ■bias as' defined by ReV: Code Cr. Proc. § 338, so as to disqualify him' to summon anew'jury to try accused.- ' •</p> <p>Where^ sheriff haying apprehended ,accused secured and preserved evidence against him, and had formed an opinion as to his guilt, but it'did not appear "that'he'had conferred with any one summoned as-a juror or attempted to 'influence any jiiror’s judgment, and' it also d-id not appear that -the. special panel summoned by the- shriff was not composed of as intelligent, reliable.,-and impartial persons as would have been secured had a special panel been -otherwise summoned, accused, n,ot having objected in the first instance to the special panel be-</p> <p>‘i!iág(‘)éiííÉttiioned >by.<3{&?§ íJ§EéflfC> WAi'-'nb't •^Sáti’ííld to have the, B’áífio .. quashed-hecause-ioi-t-hre-BlieK-ffl-s alleged actual bias-. ■ ■ • -</p> <p>.A_specjalv.pa.jjsl, h,aying,;be§h'summoned . by.kthe^sheriff-. tja cused, he objected thereto because of the sheriff]s.iaq.tualbias, invsup- ■’ pbrt of"’which' oiTectioh í¡é'w*as permitted to] examiné' the'sheriiS ,as xo •"his qtia'iificatiíms.nM'Thé 'challenge being ’ disállqWícl;''ánd-'vtlie ‘special ■ ,.p^pph..exh:-au?.tedj/,the;^he>}ÍSí:#as ordered14-o sümm,on a. second ho .•which panel when summoned accjisedr-also for the first timei'.objected on, the same ground. ' Helia',' ‘that the court did. not err ip refusing to permit ’ a''r'é-e'xám-iná:tibn- of" the sheriff; there being no'offer iOf<;’different proof from;-that intf,oduced;>inhsupport'-of the previous'¿háliengé. '■ ” • v</p> <p>. . Refusal-q.f,Requested instructions .covered -by .the, instructions iof the court is not error. .. ( ......</p> <p>An •information charged murder;'and the court instructed that if 'the killing whs'db'né'with'malice aforethought an’d'W'ith'a' premeditated ■ design to effect deceased's death, .^Without authority ofdaft»,.'and without justifiable pp_,excusable cpuse, defendant,.w.otjldyhe,. guilty ,of murder as charged, and the jury should so find , and fix his punishment at ■ death óf ''i'tóbriséííimérít £¡jp ’ÍTfey ’hh-t/ if the jtiry h'ádu-éasoná'b'le' doubt as to the defendant-s <guilt of murder,.:it-should, acquit'him of that charge,, and,determine whether, he was -guilty of manslaughter ;in the first or second degree, in which event they would use a specified for,m of'Verdict.' Bfeíd; that a verdict finding "accused guilty ‘'as charged 'in .the, information'”, and fixing "his' punishment”'at ‘death”1 -whs 'h.ot objectionable: -for, uncertainty,.', :1 . • | ,. . s: , .</p>

<p>Error in admission of an opinion over objections.,to,-Ibe question is not ground for reversal; the fact sought, to be established by, it being proved by other uncoritradict'ed evicleifce, to which' such objections did no't exist, arid-concerning wbicb. no'erfoi'is assigned',1' ■ " ' "</p> <p>■ A-flndiing ;that ,a floofe-of sheep "of a certain number, as'increased by lambs in two successive springs, was.of a certain greater,,number, held, not against the clear preponderance of evidence. ' ,</p>

Hon. Georgü H. Marquis, Judge. Action by P. H. Brown against J. R. Edsall. Erotn a judgment for plaintiff, and from an -order denying a new trial, defendant appeals.

Hon. Chas. S. Whiting, Judge. Action by the Conrad Seipp Brewing Company against John J. Green and another, co-partners, as Green & Hart, and another. From a judgment for defendants dismissing the action, plaintiff appeals.

Hon. Lyman T. Boucher, Judge. Action by Katherine Dring against the Township of St. Lawrence, a municipal corporation. From .a judgment for plaintiff on a directed verdict, and from an order denying a new trial, defendant appeals.

Hon. J. H. McCoy, Judge. Peter H. Peterson, under an information for assault with intent to kill, was found guilty of assault with intent to do great bodily harm, and he appeals.

<p>Defendant’s letters constituting one his agent to find a purchaser for his land, and merely giving him the ordinary atuhority of a broker, do not authorize him to make a contract for sale thereof, within Civ. Code, § 1238, subd. 5, providing that an agreement for sale of real estate, if made by an agent, is invalid, unless the agent’s authority be in writing.</p> <p>A plaintiff relying for his cause of action on a ratification of an •unauthorized contract toy an agent must plead and set out in his complaint the facts necessary to constitute such ratification.</p>

<p>Tbe rule that a demurrer searches the whole record has no application as against the complaint on a demurrer to a defense of the answer, the answer having also pleaded the general denial, as this would allow the defendant to do indirectly, what he cannot do directly, plead the general denial and demur generally at the same time.</p> <p>Laws 1907, p. 138, c. 90, prohibiting an action against a city for personal injuries from its negligence ^unless notice of time, 'place, and cause be given it within 60 days after the injury, is not retrospective, ■and so does not apply to an accident after the statute was approved, ibut before it went into effect. '</p>