Volume 23 — Wyoming Reports

Carroll H. ParmelRR, Judge. The material facts are stated in the opinion. The remedy of a wife living separate and apart from her husband in a proceeding by her against her husband under Section 3937 Compiled Statutes, 1910, is limited to the support of the wife and children or either. (Arnold v. Arnold, 39 N. E. 862 (Ind.). Other payments may be ordered in the discretion of the court under the provisions of Section 3931 Compiled Statutes, 1910, pending actions for divorce.

V. J. Tidball, Judge. R. D. Mddrum was convicted of murder in the second degree, upon an information charging that on the 12th day of January, 1912, at the County of Carbon, in the State of Wyoming, he did feloniously, purposely and with premeditated malice, kill and murder one John or “Chick” Bowen. The defendant was Town Marshal of the Town of Baggs, in Carbon County, and was attempting to arrest deceased at the time of the homicide.

Craig, Judge. The material facts are stated in the opinion. The judgment did not attach and become a fien on the land prior to the time the same was conveyed to plaintiff. In any event, the equitable interest of the judgment debtor in the land did not exceed a total value of $1,020.00 and the judgment lien cannot attach for a greater amount.

David H. Craig, Judge. The material facts are stated in the opinion. The court erred in permitting, the admission of oral testimony tending to vary the terms of a written contract. (Amer. Eng. Ec. Vol. 4, Pg. 146; Walker v. Crawford, 56 Ill. 444, (Am.

Ekror to District Court, Sheridan County, Carroll H. ParmEleE, Judge. Action by the Northrup National Bank of Iola, Kansas, against the Acme Coal Company and others upon a promissory note given for the purchase price of pit cars. The note had been endorsed to the bank before maturity. The note had been drawn on a blank form and the interest rate of seven per cent had been inserted with a typewriter.

Matson, Judge. Wyoming Development Company, one of the defendants in error, moved to quash the service of summons in error and to dismiss the proceedings in error on the ground that the proceedings in error were, not commenced within one year after the rendition of the judgment complained of and that the summons in error itself had expired by operation of law 'before it was served.

MentzUr, Judge. The material facts-are stated in the opinion. The bond was without consideration and is void. The surety was released by the judgment dismissing the divorce suit. Contracts of suretyship are strictly construed. A proceeding in error is a new suit and the bond here in. controversy cannot be extended to the consequences of a new suit.

Charles E. Winter, Judge. Plaintiff in error, O. W. White, was convicted of the crime of murder in the first degree and brings error. The material facts are stated in the opinion. The information is insufficient to charge a crime. The year in which the offense was committed is alleged as 19013, hence the information charges an impossible act and is null and void.

Carroll H. Parmelee, Judge. The plaintiff in error brought an action below for damages for personal injuries. The cause was tried to a jury, which, failing to agree, was discharged without rendering a verdict. A motion theretofore made to direct a verdict for defendant, having been overruled, was then reconsidered by the court and sustained and a judgment was entered by the court dismissing the cause.

Carroll H. FarmELEE, Judge. Action for libel. From an order sustaining a demurrer to the petition and a judgment of dismissal, plaintiff brings error. The published matter was libelous within the definition of that term. (25 Cyc. 361;. Spencer v. Minnick, 139 Pac. 130; 25 Cyc. 346.) A false imputation to a public officer of malfeasance or misconduct in office is libelous per se.

William C. Mentzer, Judge. The material facts are stated in the opinion. The defendants, by a general denial, deny all interest in the property in controversy. The Treasurer’s tax sale notice was void, because it did not include all delinquent taxes. (Comp. Stats. 1910, Secs. 2421 and 2438.) Any discrepancy avoids the sale. (Walton v. Moore, 114 Pac. 105, 58 Ore. 237, rehearing, 113 Pac. 58.) The requirement is mandatory. (Alexander v. Pitts, 7 Cush.

<p>Appeal and Error — Time for Filing Briefs — Extension op Time-Invalidity of Extension Order Made After Expiration of Time —Computation of Time.</p> <p>1. An order extending time for filing briefs inadvertently made after the time for filing briefs had expired upon the mistaken statement of counsel, that the time had not expired, was void, and the proceedings in error must under Rule 21 be dismissed on motion of defendant in error.</p>

Willim C. Mrntzrr, Judge. On rehearing. The facts will be found stated in the former opinion reported in 22 Wyo. 237, and in that report of the case will be found an abstract of the briefs on the original hearing. Compiled Statutes 1910, Sections 3806 and 3816, were borrowed from the Statutes of Missouri.

W. C. MENTzer, Judge. ON MOTION TO DISMISS EOR FAILURE TO FILE BRIEFS. The application for the extension of time for filing briefs was made after the time fixed by the rule had expired and was void. (Rule 20; Cronkhite et al. v. Bothwell, 3 Wyo. 739,-31 Pac. 400; Daley v. Anderson et al., 7 Wyo. 1-8.)

David H. Craig, Judge. Action upon a promissory note. Defendants who were in default filed a demurrer out of time and while the same was pending undisposed of, the Clerk, upon application of plaintiff, entered a default judgment against defendants pursuant to the provisions of Section 4456, Comp. Stats. 1910. From an order overruling their motion for a new trial, defendants prosecute error.

Ekror to the District Court, Converse County; Hon. William C. MrnRzrr, Judge. Action by Joseph Koshland and others, doing business under the firm name and style of J. Koshland & Co., against Alex Weber to recover a balance claimed to be due on a wool consignment contract. There was a judgment for defendant and plaintiffs bring error. Other material facts are stated in the opinion.

David H. Craig, Judge. The facts are stated in the opinion. The judgment is not supported by the findings. The findings are conflicting and contradictory. It was error to suppress depositions offered by plaintiff. They were filed with the Clerk April 22nd, 1904. No exceptions to depositions will be regarded other than for incompetency or irrelevancy, unless made and filed before the commencement of the suit. (Comp.

William C. Mentzer, Judge. Action to recover on a contract of fire insurance. From a judgment in favor of the Lumber Company and against the Insurance Company for the amount claimed, it brings error. The alleged contract of insurance is based upon correspondence that passed between the parties. No policy was ever issued. The loss occurred on the 19th of Eebruáry, 1911, but prior thereto the owner had conveyed the property to another.

Charles E. Winter, Judge. The material facts are stated in the opinion. The plaintiff below had no sufficient interest in the subject matter of the action to maintain the suit. The action was brought in the interest of another. The evidence failed to establish allegations that the dam and superstructure is a public nuisance. Plaintiff in error constructed its dam under a permit from the state; the crest of the dam may be widened, if necessary, without destroying the property.

Carroll H. ParmRliJE, Judge. William McAdams was convicted of the crime of larceny and brings error. The facts are stated in the opinion. The information did not state a crime punishable by the laws of the state. The witness, Yemington, by his own admissions, was an accomplice and his testimony was not corroborated upon any material fact essential to constitute the crime of larceny; there was no proof that the taking by defendant was with felonious intent to steal.

William C. MenTzer, Judge. Clyde E. Griffis was convicted of grand larceny and brings error. No briefs. Heard on oral arguments on motion to dismiss.

William C. Mentzer, Judge. The material facts are stated in the opinion. Defendant’s answer did not set up a legal -defense, and plaintiff’s demurrer thereto should have been sustained. An over-valuation of property exchanged for corporate stock is a fraud in law. The liability of stockholders is fixed by statute. (Comp. Stats. 1910, Secs. 3988 and 3989.) One receiving stock in a corporation must pay for it either in money or money’s worth.

Vol-nEy J. Tidball, Judge. Action by C. A. Johnson and D. A. McLean against August Nelson to recover a balance on account in connection with a building contract. Plaintiffs were awarded judgment and defendant brings error. The facts are stated in the opinion. ■ There was no evidence introduced in support of plaintiff’s claim for extras other than a mere expression of bpinion.

CRIARLES E. WINTER., Judge. Action by Frank Snavely to recover damages for the killing of live stock on the ground that the defendant had failed to maintain a proper fence and to give notice to the plaintiff of the 'killing of the live stock, as required by statute. The plaintiff below recovered judgment against the railroad company for double the value of the animals and the company brings error.

ORIGINAL proceedings in habeas corpus by Harry Zulch et al. against Frank Bj. Roach, sheriff of Laramie County, et al., to resist extradition. The facts are stated in the opinion. An indictment failing to set out some particular date when the crime was committed is fatally defective, even if it otherwise sufficiently charges the commission of a crime. (Barnes v. State, 42 Tex. Cr.

V. J. Tidbauu, Judge. The material facts are stated in the opinion. The testimony of the witness John Wallace was incompetent and should have been excluded; the condition of the cattle three months after shipment was not a proper basis for estimating shrinkage; it is not shown whether the cattle improved or depreciated under proper or improper care and treatment. The testimony was misleading to the jury.

David PI. Craig, Judge. The material facts are stated in the opinion. The evidence is insufficient to support the verdict. To arrive at a general finding for defendant it was necessary to find that defendant disbursed upon written orders $3,388.50 of seriously disputed disbursements, which is contrary to the evidence. The treasurer’s books were not audited.

<p>ERROR to the District Court of Fremont County; on motion to dismiss.</p>

C. H. ParmelEE, Judge. The material facts are stated in the opinion. The agreement made at the time of the execution of the chattel mortgage was an agreement hindering, delaying and defrauding creditors, thus making the mortgage void. A chattel mortgage permitting the sale of the mortgaged goods without requiring, the proceeds to be applied on the indebtedness is void on its face.

David H. Craig, Judge. Action by Marion W. Edwards upon promissory notes given by Margaret G. Henne, who died pending trial,' and for whom Albert D. Johnston, her administrator, was substituted. The notes were given upon a stock subscription contract and endorsed to plaintiff before maturity. Other material facts are stated in the opinion.' The alleged breach of contract as to the sale of the stock, alleged as a defense, was controverted by defendant’s own witnesses.

Charles E. Winter, Judge. The material facts are stated in the opinion. Plaintiffs in error acquired title to the land by adverse possession and all of the elements of adverse possession were proven. (Bryant v. Cadle, Admr., 18 Wyo. 86.) Actual possession was shown.

V. J. Tidball, Judge. Action by E. S. Welch against Aven Nelson et al., constituting the State Board of Horticulture. The plaintiff sought to enjoin the Board from interference with his business as a non-resident dealer in nursery stock, asserting his right to make sales in the state after procuring the license and giving the bond required by statute. Erom an order sustaining a demurrer to his petition, plaintiff brings error.

<p>Appeal and Error — Briefs—Court Rules — Dismissal.</p> <p>1. The appellate court will not search the record for the purpose of discovering possible errors assigned by petition in error, and where plaintiff in error has failed to comply with Supreme Court rules numbered 14 and 15 with reference to filing briefs, the proceedings will, on motion, be dismissed pursuant to Rule 21.</p>

W. C. Mbntzur, Judge. The facts are stated in the opinion. Plaintiff in error is a bona fide lodge organization duly incorporated,' maintaining a buffet wherein intoxicating liquors are dispensed to its members by and through its steward, an employee of the organization. It was not a violation of Section 2832, Comp.

Charles E. Winter, Judge. There is no evidence to support a verdict and judgment for actual damages in the sum of $1,250. There is no evidence to support a verdict and judgment for exemplary damages in any amount whatsoever. The misconduct of members of the jury during the trial precluded a fair trial; it was admitted by plaintiff that he received no permanent injury. The plaintiff was on Hanson’s premises at the time of the trouble.

RODERICK N. Matson, Judge. On rehearing on motions to quash service and dismiss. For former opinion, see 23 Wyo. 75, 147 Pac. 169, which is overruled. Held: that the issuance and service of the first summons constituted a commencement of the action and that while the service was irregular and was properly quashed in the court below, the effect was not jurisdictional, and that the subsequent proceedings related back to the original proceedings.

William C. MENTzer, Judge. Thomas G. Nicholson was convicted of the crime of libel and brings error; heard on motion to dismiss for failing to file briefs within time. Motion denied. The motion is untimely. An objection to the filing of plaintiff’s brief was waived by the Attorney General. Plaintiff in error was delayed in securing an approval of the bill of exceptions.

William C. MentzER, Judge. Frank Harris was convicted of the crime of grand larceny. Motion for new trial overruled and defendant brings error. The facts are stated in the opinion. The objection to leading questions propounded to witness, McCarty, should have been sustained.

P. W. Metz, Judge. Action by Harry A. McLimans against Nettie Harmiston and S. P. Cadle. There was judgment for plaintiff and defendant brings error. Heard on motion to dismiss and upon the merits. The material facts are stated in the opinion. Plaintiff in error, Cadle, has an appealable interest, as he was made- a party defendant below where relief was sought against him affecting a substantial right.

David H. Craig, Judge. Action by Rock Springs Lodge No. 12, Ancient, Free and Accepted Masons, a corporation, to enjoin G. H. Hardin, as county treasurer, and others from the collection of taxes, assessed and levied upon lodge property. From an order granting the injunction the defendants bring error. The cause was submitted on an agreed statement of facts which are stated in the opinion.

William C. Mentzer, Judge. Action by John Morton against William Reynolds to recover the value of certain cattle upon which Morton held a chattel mortgage and which had been sold and removed by the mortgagor. The mortgages in question were considered by this court in a cause between the same parties reported in 22 Wyo. 174, 136 Pac. 795. The mortgage of Morton was not due and was not in default at the time of the alleged conversion.

Carroll H. P arm alee., Judge. Action by W. H. Pool to restrain Fred M. Baker from removing a fence, which enclosed plaintiff’s lands with a portion of defendant’s homestead claim, in which action the defendant sought by cross-petition to enjoin plaintiff from interfering with the removal of the fence. From a judgment for defendant, plaintiff brings error. The fence belonged to plaintiff in error and he had been in possession of the land for many years.