Volume 24 — Idaho Reports

Prom the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge. Appeal from a judgment affirming the report of a board under the act of the legislature passed and approved February 7, 1911, creating Bonneville county.

Hon. Carl A. Davis, Judge. Action to have a judgment entered against a corporation for personal injuries declared to be a debt… Held: at which were present in person I. W. Anderson, Charles A. Hutchinson, A. R. Cruzen, and S. D. Sinkler, they together representing in person 320 shares and also 1,180 shares were represented by I. W. Anderson as proxy for the owners and said shares so represented in person and by proxy, to wit, 1,500 shares, being all of the shares…

Hon. J. M. Stevens, Judge. An appeal from the judgment of the district court setting aside an order of the probate judge revoking the probate of a will. Counsel cite no authorities on points decided.

An original application in this court for a writ of mandate. “If, by the provisions of said section, a specific sum had been appropriated annually to pay olaims arising thereunder, then the auditor would be authorized to draw the warrant demanded in this ease, unless the appropriation had been previously exhausted.” {Kingsbury v. Anderson, 5 Ida. 773, 51 Pae. 744.) “ ‘Appropriated by law’ means the act of the legislature setting apart or assigning to a particular use a…

<p>Immigration Commissioner — Salary — Appropriation — "What Constitutes Appropriation.</p> <p>1. Section 1, article 13, of the state constitution provides that, “There shall be established a bureau of immigration, labor and statistics, which shall be under the charge of a commissioner of immigration, labor and statistics, who shall be appointed by the governor, by and with the consent of tbe senate. The commissioner shall hold his' office for two years, and until his successor shall have been appointed and qualified, unless sooner removed.”</p> <p>2. See. 1418, Eev. Codes, as amended in 1911 (1911 Sess. Laws, p. 564), provides that “It shall be the duty of the Governor, by and with the consent of the senate, to appoint a competent person as Commissioner of Immigration, Labor and Statistics, who shall have charge of said bureau, and who shall hold his office for the term provided in said Article 13 of the constitution. He shall receive a salary of $2,400 a year,” ete., and see. 276 of the Eev. Codes provides that “The salary of all state and district officers, whose salaries are paid from the state treasury, shall be paid quarterly' on the second Monday of January, April, July and October of each year out of any money in the treasury not otherwise appropriated.”</p> <p>3. Under the provisions of see. 1, art. 13, of the constitution, creating the office of immigration commissioner, and see. 1418 of the Eev. Codes, as amended by the 1911 Session (1911 Sess. Laws, p. 564), prescribing the salary of immigration commissioner, and see. 276 of the E'ev. Codes, providing-that the salary of a state officer shall be paid “out of any money in the treasury not otherwise appropriated,” held, that these provisions of law constitute an appropriation within the purview and meaning of sec. 13, art. 7, of the constitution, whieh provides that “no money shall be drawn from the treasury, but in pursuance of the appropriations made by law.” It is also further held that under the foregoing provisions of law it was not neeessary for the last session of the legislature to make a specific appropriation in the general appropriation bill for the office of commissioner of immigration, labor and statistics, in order to enable the commissioner to draw his salary as provided by law.</p> <p>4. The legislative intent that controls in the construction of statutes has reference to the legislature whieh passed a given aet, and that intent is indicated by the action of the legislature and not by ■their failure to act. Legislative intent is not gathered from the failure of a legislature to pass any particular act or legislation; the intent is gathered from the things they do.</p>

Original action for writ of mandate. The statutory provisions applicable to the cause at bar (sec. 1418 and sec. Ill together) fulfill the precise conditions necessary to constitute a continuing appropriation. They “fix the compensation, the time of payment, and authorize the controller to draw his warrant to pay the same when due.

Hon. Jobn F. MacLane, Judge. Action for a permanent injunction restraining tbe construction and maintenance of a dam and breakwater in tbe Boise liver. Before a court of equity will grant relief, it is necessary for tbe complainant to satisfy tbe court tbat irreparable injury will occur if an injunction be not granted. (22 Cyc. 762; ScJiubach v. McDonald, 179 Mo. 163, 101 Am. St. 452. 78 S. .W. 1020, 65 L. B. A. 136; Rouse v. Martin, 75 Ala. 510, 51 Am.

<p>Contract — Irrigating Canals — Construction of — Eight of Wav— Injunction — Escrow.</p> <p>1. Seld, under the facts of this ease and the contract entered into between the C. P. P. & I. Co. with the A. C. W. U. Assn., that the C. P. P^ & I. Co. is not entitled to an injunction in this case.</p> <p>2. Seld, that the C. P. P. & I. Co. failed to perform the obligations imposed on it by the contract for the construction of an irrigation system, and that 'the land owners were fully justified in withdrawing their applications or contracts to purchase stock in the A. C. W. IJ. Assn, from escrow.</p> <p>3. Seld, that the equities in this ease are with the S. E. I. Co.</p> <p>Contract — Construction or — Canals—Ditches—Rights or Wav eor —Over Public Lands — Construction or Statutes.</p> <p>1." Held, under the "Application and Agreement for the Purchase of Stock” made by the settlers and the contract between the Apple Cove Association and the Crane Palls Power & Irrigation Company, that it was not the intention of the parties to furnish the Crane Palls Company with title to a right of way for the construction of ditches for the irrigation of the lands of the settlers.</p> <p>2. Under the laws of this state, there are two methods of acquiring water rights: (1) To proceed as the statute directs; (2) To apply unappropriated water to a beneficial use without making application to the state engineer.</p> <p>3. The provisions of see. 2339, TT. S. Rev. Stats., were intended to protect persons in their rights to the use of water and were not enacted for the purpose of enabling contractors who construct ditches for an agreed compensation to procure title to rights of way for such ditches.</p> <p>4. Held, under the facts of this case that the appellant corporation was a construction company, and as a construction company is not entitled to a title to a right of way for ditches under the provisions of see. 2339, supra.</p> <p>5. The owner of an irrigation diteh, constructed over public lands, does not acquire title in fee to such right of way, but a conditional easement which will be defeated by his failure to use it for the purpose for which it was obtained.</p> <p>6. After the commencement of the construction of sueh canal, the law contemplates that the work shall be prosecuted with due and reasonable diligence to completion.</p> <p>7. Held, that the provisions of said sec. 2339 were not intended to give anyone title to the right of way for segments of canals merely because they constructed them.</p> <p>8. Said sec. 2339 provides for protecting sueh rights to the use of water as vest and accrue by a priority of possession, and such as are recognized and acknowledged by local customs, laws and decisions of the courts.</p> <p>9. The provisions of said sec. 2339 refer to the right of way for sueh ditehes as are used in connection with vested water rights, and unless one has a vested and accrued water right, he is not entitled to an easement over any public lands for the construction of ditches.</p> <p>10. Sueh title as the provisions of said sec. 2389 gives does no't vest until the completion of the ditch, and unreasonable delay in its completion forfeits any claim to the right of way.</p>

<p>Motion to Vacate Judgment — Appealable Order — Motion eor Continuance Reviewable upon Appeal prom: Judgment — Granting Continuance in Discretion op Court.</p> <p>1. Under the provisions of see. 4198 of the Rev. Codes of this state, “All pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffiee address,” etc.</p> <p>2. A motion for continuance is reviewable upoh appeal from the judgment.</p> <p>3. A motion for continuance is addressed to the sound legal discretion of the court, and unless there is a clear abuse of that discretion, the order made will not be disturbed on appeal.</p> <p>4. Where a motion was made for a continuance and was denied, and no appeal was taken from the final judgment in the case, a court should not' thereafter grant a motion made to vacate and set aside the judgment where the motion is based upon the same grounds and facts set forth in the motion for continuance and where such motion is made after the time for appeal from the judgment has expired.</p> <p>5. Where there is no abuse of discretion on the part of the trial court in denying a continuance upon the showing made, there can be no abuse of discretion-in subsequently denying a motion to vacate the judgment entered in the same case, where the motion to vacate is based upon the same showing and state of facts disclosed in the motion for continuance.</p> <p>6. A motion to vacate and set aside a judgment under the provisions of see. 4229, Rev. Codes, is addressed to the sound legal discretion of the court, and when that discretion has been brought to bear upon all the facts presented in the motion and has been exercised in the light of the statutes bearing upon the questions encompassed by the motion, and there is nothing which makes it appear that such discretion has been arbitrarily exercised in disregard of the established rules of law and principles of justice, an appellaté court will not disturb the order and judgment of the court that was called upon to exercise the discretion.</p> <p>7. Where a motion is made to set aside and vacate a decree of divorce, and it appears that at the time of the hearing on the motion one of the parties has remarried, the court will ordinarily require a stronger showing before vacating the judgment than he would require under other circumstances or in an ordinary case.</p>

<p>Irrigation Districts- — Power of Board of Directors — Assessment for Maintenance — Construction of Statutes — Benefits.</p> <p>1. See. 2407, Rev. Codes, empowers the board of directors of an irrigation district to “prepare an assessment-book containing a full and accurate list and description of all the lands of the district, and a list of the persons who own, claim, or have in possession or control thereof during the year .... and proceed to levy an assessment upon all the lands of the district for expense of maintaining and operating the property of the district. Said assessment shall be spread upon all tho lands of the district .... proportionate to the benefits received by such lands growing out of the maintenance and operations of the said works of said district.”</p> <p>2. It is a well-recognized rule of law that a section of the statute should be construed in the light of the purpose for which the legislature enaeted the particular act, of which such section is a part.</p> <p>3. It was the intention of the legislature in enacting title 14 of the Rev. Codes, providing for the organization and government of irrigation districts, which includes sec. 2407, that the lands irrigable under the system within the district should be considered as a whole, and such lands must be assessed, for the maintenance and operation of the water system, at the same rate, where the benefits, that is, the water needed and received, are the same.</p> <p>4. “Benefits,” as used in sec. 2407, Rev. Codes, in connection with assessments for maintenance, mean sueh benefits as contribute to promote the prosperity of the district, and add value to the property of the respective owners of the entire district, and that such improvement of land in any portion of the district adds to and increases the value of the lands of the entire district, as the water is applied and devoted to a beneficial use by the owners ■through said system.</p>

<p>Interstate Commerce — Connecting Lines — Points Within States— Shipping Over Route Partly Outside op State.</p> <p>1. See. 1 of the Interstate Commerce Act, as amended June 29, 1906, and April 13, 1908, provides, among other things: “That the provisions of this act shall apply to ... . any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment), from one state or territory of the United States,'or the District of Columbia, to any other state or territory of the United States, or the District of Columbia, or from one place in a territory to another place in the same territory.....Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property or to the receiving, delivering, storage, or handling of property wholly within one state and not shipped to or from a foreign country, from or to any state or territory as aforesaid.” And that “the term ‘railroad/ as used in this aet, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement or lease, and shall include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property; and the term ‘transportation’ shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage.”</p> <p>2. See. 6 of the Interstate Commerce Act, as amended, requires every common carrier, subject to the provisions of the act, to file with the commission and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, pipe-line or by water, when a through route and joint rate have been established.</p> <p>3. Held, in this ease, that the evidence clearly shows that the proposed transportation of the goods offered for shipment was from Nampa in the state of Idaho to Weiser, Idaho, passing from Idaho into Oregon and through a portion of Oregon and back into Idaho, and from Weiser, Idaho, to New Meadows, Adams county, Idaho, the terminus of the connecting line with the defendant company, and that such facts show the proposed shipment was an interstate shipment under the interstate commerce aet.</p> <p>4. Held, that the shipment involved in this case being an interstate shipment, the defendant is not bound beyond the legal destination under the interstate commerce aet, whieh in this case is New Meadows.</p> <p>5. Held, that New Meadows, the legal destination of the shipment involved, is located in Adams county, and that Adams county is a dry county under the loeal option act, Laws of 1909, p. 17, and that under see. 25 of such aet it is provided that any person, firm, corporation, society or club within this state who shall accept for shipment, transportation or delivery, or who shall ship, transport, or deliver any intoxicating liquor to any person, firm, corporation, society or club in any prohibition district in the state of Idaho, or to any point or place in this state where the sale of intoxicating liquors is prohibited by law, except as may be authorized by this aet or the interstate commerce law of the United States, shall be guilty of a misdemeanor and punished as provided in see. 30 of this act.</p> <p>6. A mandate will not be issued by this court against a party and thereby compel the commission of a crime.</p>

Hon. Carl A. Davis, Judge. Action to compel the district board to.classify lands as provided by see. 3287, Rev. Codes. Judgment for plaintiffs and writ granted.

Hon. James M. Stevens, Judge. ‘ Action to enjoin the collection of taxes levied against certain lands. Judgment for the defendant. Plaintiff appeals. The federal Carey act expressly gránted to the state the right to create a lien for the “necessary expenses of reclamation.” Such specific expression of a direct grant prohibits the state from imposing any other lien whatever upon said lands. (Johnson v. So.

Hon. Alfred Budge, Judge. An action upon a promissory note. Judgment for plaintiff. files no brief on points decided. “After the time has expired for serving and filing a proposed statement or bill of exceptions, the judge or court has no power to extend the time.” (Swartz v. Davis, 9 Ida. 238, 74 Pae. 800; Sandstrom v. Smith, 11' Ida. 779, 84 Pac. 1060.) The transcript in this case was not filed until something over four months and a half had elapsed from the date of the…

<p>Note and Mortgage — Eoreclosube—Default in Interest Payment— Default Provision of Note and Mortgage Construed Together— Exercise of Option.</p> <p>1. A note and mortgage given to seeure the payment of the same must he construed together as one contract, and where the provisions of the two instruments can he so construed as to give effeet to the provisions contained in hoth note and mortgage, such construction will be given to the contract.</p> <p>2. Where a promissory note provides that interest' shall he paid annually “and if not so paid the whole sum of hoth principal and interest to hecome immediately due and collectible,” and a mortgage given to seeure the payment of the same provides that “if the interest he not paid as therein specified, then and from thenceforth it shall he optional with the said party of the seeond part .... to. consider the whole of said principal sum expressed in said notes as immediately due and payable,” etc., the provisions of the note and mortgage will be construed together with a view to giving effect to ■the intention of the contracting parties, and when so construed, held, that a default in payment of any interest payment when due will mature the whole indebtedness of both principal and interest at the option of the holder of the note and mortgage, and that a tender of the overdue interest made before the holder elects to-declare the whole debt due is in time and prevents the subsequent exercise of the option by the holder of the note and mortgage.</p> <p>3. Where there is an uncertainty or ambiguity in, or inconsistency between, the stipulation contained in a mortgage and a note given to seeure the same providing for the acceleration of the maturity of the principal debt, the court should follow the rule of construction which requires every provision of the contract to be given foree and effect, when it is possible so to do, and will place that construction upon the contract which is consistent with the provisions of both instruments and accomplishes the apparent intention of the contracting parties.</p> <p>4. Where it is possible so to do, such a construction will be placed upon ambiguous, uncertain or apparently 'inconsistent provisions of a contract as will give protection to both parties, as against a construction which would be only in the interest of one of the parties to such contract.</p> <p>5. Under the statute of this state, sec. 4520, Eev. Codes, there can be but one action for the recovery of any debt secured by mortgage on real or personal property, and that action is under the provisions of chap. 1, title 10, part 2, of the Code of Civil Procedure, which chapter is entitled “Actions for the Poreelosure of Mortgages,” and the.holder of a note secured by mortgage cannot maintain an aetion at law for the collection of his note without at the same time and in the same aetion proceeding to foreclose his mortgage, unless it be shown in such aetion that the security has become wholly valueless.</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. C. O. Stochslager, Judge.</p> <p>Action to foreclose a mortgage. Judgment for defendant. Plaintiffs appeal-.</p> <p>Counsel cite no authorities on points decided.</p>

Hon. Chas. P. McCarthy, Judge. Action to compel the defendant company to deliver to the plaintiffs a certain amount of water. Judgment for plaintiffs. Counsel cite no authorities on point decided.

Hon. Edward A. Walters, Judge. Action to recover damages on the ground of carelessness and negligence in diagnosing and treating a certain disease. Judgment for plaintiff. In overruling defendant’s demurrer the court placed the defendant at a great disadvantage. He was entitled to know just what was the disease from which it was contended plaintiff was suffering. He was certainly entitled to understand the nature of plaintiff’s proof.

Hon. C. O. Stockslager, Judge. Action to quiet title to certain real estate. Judgment for the plaintiff. A motion for judgment on the pleadings admits the truth of all the allegations of the answer and cross-complaint. It also admits the untruth of all the allegations in the complaint, which defendants have denied. (Mills Novelty Go. v. Dunbar, 11 Ida. 671, 83 Pae. 932; Idaho Placer Min.

Hon. James G. Gwinn, Judge. Action for damages for personal injuries. Judgment for plaintiff. Defendant appealed. The duty of the municipality is fully discharged when it makes a sufficient width of its highways reasonably safe for travel, taking into consideration the location of the street and the extent to which the same is used. The authorities clearly bear out this statement of the law. (Herndon v. Salt Lake City, 34 Utah, 65, 131 Am.

<p>Negotiable Instrument — Payment-—Sufficiency of Evidence — Non-suit.</p> <p>1. Where a promissory note is executed and delivered to a hank by two persons, 'and the note upon its face contains the following language, “we promise to pay," sueh note upon its face is a joint and several liability, and sueh note is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.</p> <p>2. In an aetion by G. W. T. against the administratrix of O. E. T., deceased, to recover upon an implied contract, where it is claimed that G. W. T. signed as surety upon a note wherein O. E. T. was principal, and such note was executed for a debt of C. E. T., and the evidence shows that the note was in the possession of G. W. T., and was introduced in evidence, and that there was indorsed upon said note “paid by G. W. T.,” sueh note and the indorsement, with other evidence that the same was paid by G. W. T., is sufficient to establish a prima facie ease, and it is error of the trial court to grant a nonsuit.</p> <p>3. Where a motion for a nonsuit is made at the conclusion of plaintiff’s evidence, and certain grounds are assigned in such motion, and the motion is sustained, and an appeal is taken from the order and judgment of the court upon said motion, this court will not consider errors assigned by counsel in their brief which were not included in the motion for a nonsuit.</p>

<p>Sueeiciency or Evidence.</p> <p>1. Evidence in this case examined and held sufficient to support the verdict and judgment.</p>

Hon. James G. Gwinn, Judge. An appeal from the judgment of the district court reversing •an order of the board of county commissioners and holding that Rural High School District No. 3, in Fremont county, has no existence da facto or da jure.

<p>Appeal — Motion to Dismiss — Dorm of Judgment — Construction of Statute.</p> <p>1. Under the provisions of sec. 5474, Rev. Codes, a judgment rendered against an executor or administrator upon a claim for money against the estate of his testator hr intestate only establishes the elaim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the exeeutor or administrator pay in' due course of administration the amount ascertained to be due.</p> <p>•2. Where a judgment was entered on the first day of May, 1912, and no appeal was taken therefrom within sixty days from the entry thereof, under the provisions of sec. 4807, Rev. Codes, as amended by Session Laws 1911, p. 367, and thereafter, on the 26th day of October, 1912, said judgment was amended by adding thereto the following words, “and that said judgment be paid in due eonrse of administration of the estate of W. G. Whitney, deceased,” an appeal taken from sueh judgment on December 21st, 1912, is too late to have said judgment1 reviewed on appeal, so far as any errors are concerned alleged to have been made during the trial of said cause, as said amendment made no change in the amount or effect of said judgment.</p> <p>3. Meld, that without such amendment said judgment must be “paid in due course of administration,” as provided by said sec. 5474.</p> <p>4. An order made after a final judgment is an appealable order.</p>

<p>Appellate Practice and Procedure — Preparation of 'Transcript— Transcript of Reporter’s Notes — Time for Extending Notes— Jurisdiction of Trial Judge to Grant Extensions — Rule 77 of Supreme Court Directory Only — Duty of Appellant in Procuring Transcript — Laches—Application of Rules 23 and 25 of Supreme Court to Amended Appellate Procedure — Riparian Ownership — Protection to Banks of Stream — Obstructions in Stream — Shifting and Changeable Streams — Breakwater, Cribbing and Rip-rapping Along Streams — Injunction.</p> <p>1. Under the provisions of subd, 1 of sec. 4434 of the Rev. Codes, as amended at the 1911 session of the legislature (1911 Sess. Laws, p. 379), an appellant who desires “a transcript of the ■ testimony and proceedings .... shall first procure from the district judge an order directing the reporter to prepare said transcript or specified portion thereof, which order shall limit the time within which the reporter shall complete and lodge the same.”' In the event any further order for extension of time is necessary, the district judge has the jurisdiction and authority to grant sueh further time as may be required.</p> <p>2. Under the amended and revised appellate praetiee and procedure, as adopted by the 1911 session of the legislature, the ap-. pellant has no control over the getting out of the transcript, either of the reporter’s notes or of the judgment-roll and record in the case, except to file his praecipe for the record and pay the estimated fees therefor, until the transcript is delivered to him for service.</p> <p>3. The amended and revised appellate practice and procedure, as adopted by the 1911 session of the legislature, leaves the preparation of the transcript of the reporter’s notes and the reeord in the case to the court reporter and the elerk of the district court, and the duty of filing such record in the supreme court is imposed upon the clerk of the district court, and on failure by the reporter or the clerk to discharge this duty promptly and with diligence, either the district judge or the supreme court may issue orders and mandates to compel prompt and timely action on the part of these court officials.</p> <p>4. A failure on the part of either the court reporter to prepare a transcript of his notes or on the part of the clerk of the district court to prepare and deliver a transcript or file the same in the supreme court cannot result in or work a dismissal of the appeal, unless the appellant has been guilty of laches and negligence, or has in some way contributed to or encouraged the delay and failure on the part of the proper officer to act.</p> <p>5. Held, that under the provisions of sec. 4434 of the Rev. Codes, as amended by chap. 119 of the Session Laws of 1911 (1911 Sess. Laws, p. 379), it was the purpose and intent of the legislature to vest the jurisdiction and authority in the district judge to control the getting out of reporter’s notes and to grant necessary extensions of time for the reporter to transcribe his notes and to make all orders in relation thereto.</p> <p>6. Rule 77 of the rules of the supreme court, with reference to extensions of time within which to extend reporter’s notes and the showing to be required by the district judge before granting such extensions, is directory and not mandatory, and a failure to comply therewith will not work a dismissal of an appeal where the appellant has been diligent in the prosecution of the appeal and has done everything required of him by statute to be done.</p> <p>7. This court will require a strict compliance with all the provisions of the revised and amended appellate practice and procedure, as enacted by the 1911 session of the legislature, in so far as those provisions contemplate the speedy prosecution of appeals and the elimination of delays.</p> <p>8. Under the amended and revised statutes prescribing the appellate practice and procedure, a reporter’s transcript of the testimony, duly .signed and certified by the judge of the district court, takes the place of a statement or bill of exceptions, and the time for filing a transcript on appeal as prescribed by Rules 23 and 25 of the supreme court is suspended during the time the reporter is preparing his notes and until the same is settled and allowed by the district judge.</p> <p>9. As a general rule of law applicable to a river or stream of water with well-defined banks and a permanent channel or bed, a riparian owner of lands abutting on such stream has no right to place obstructions out into the stream or channel thereof for the purpose of changing the natural course of the stream or for any other purpose that would be injurious or damaging to the riparian owner on the opposite side thereof or to the owner of land abutting on the stream either above or below.</p> <p>10. The general rule applicable to flowing streams of a permanent character and well-defined banks and channel or bed is subject to many exceptions in cases where a stream is vagrant and constantly changing in its course and channel and flows through a level, sandy and gravelly formation, and is constantly filling in on one side and cutting out on the opposite side, thus damaging riparian proprietors.</p> <p>11. A riparian proprietor has a right to build cribbing, stoekades, or rip-rapping along the natural bank of the stream in order to protect the banks and the abutting lands.</p> <p>12. The law will not permit one riparian proprietor to build structures in the channel or bed of the stream so as' to impede or interfere with the flow of'the current or render it necessary for another riparian proprietor to build rip-rapping, cribbing, a breakwater, or other structure, in order to protect his land from washing or erosion caused by the additional burden and flow of water cast upon it by reason of the encroachments of such opposite riparian proprietor.</p> <p>13. In dealing with streams of the nature and character of the Boise river where it flows through the Boise Valley, a court must take into consideration -he natural conditions and the peculiarities of the stream and the country and formation through which it flows and its vagrant and changeable character, and also the fact that great reservoirs and lakes have been formed and prepared and are being prepared for the storage of the waste, surplus and overflow of this stream in the high-water period, and that in the near future there will be no high-water season in this stream where it flows through the Boise Valley.</p>

<p>SnEFICrENCY OP EVIDENCE-REVERSAL ERROR.</p> <p>1. Where there is a conflict in the evidence, and substantia] evidence supports the findings and judgment, this court will not reverse ■the judgment.</p> <p>2. Held, in this case, that there is substantial evidence to support the findings and judgment.</p>

Hon. Carl A. Davis, Judge. Action to recover for damages sustained by reason of a mistake made in an abstract of title to certain real estate. The instructions of the court should be restricted to the issues made by the pleadings and to the evidence; when the declaration alleges the personal negligence of the defendant as a ground of liability, it is a fatal objection to the instruetions that they direct the attention of the jury to other and different elements of liability.

<p>Foreign Corporation — Security for Costs — Dismissal of Action for Failure to Secure Costs — Amount of Cost Bond — Jurisdiction of Question.</p> <p>1. Under the provisions of sec. 4915 of the Rev. Codes, when the plaintiff in an action resides out of the state or is a foreign corporation, the defendant may require sueh plaintiff to give security for costs and charges whieh may be awarded against sueh plaintiff, and a demand for security in sueh case stays all proceedings in the action until an undertaking, executed by two or more persons, is filed with the clerk of the court to the effect that they will pay such costs and charges as may be awarded against the plaintiff by the judgment or in the progress of the aetion, not exceeding the sum of $300.</p> <p>2. Under the provisions of see. 4915, Rev. Codes, the court has nothing to do with fixing the amount of the bond or the conditions to be contained in the bond. In sueh case, the bond must be in the sum of $300, conditioned that the sureties will pay all costs and charges that may be awarded against the plaintiff not exceeding the amount of the bond, namely, $300.</p> <p>3. Where a defendant demands security for the payment of costs under the provisions of sec. 4915, Rev. Codes, and the plaintiff fails, neglects or refuses to give the required undertaking for a period of thirty days, the defendant is thereafter entitled to have the action dismissed upon proof that the demand has been made and that the plaintiff has failed and negleeted to give the statutory bond.</p> <p>4. The undertaking provided for by sees. 4915 and 4916 may be waived by the defendant, either by failing to demand the same or by proceeding in the aetion or with the trial of the ease to sueh an extent as to render it unfair or inequitable to allow him to thereafter make the demand and stop the trial or proceedings in the case.</p> <p>5. Where a demand has been made under the provisions of see. 4915 for security for costs and the plaintiff has misconstrued and misapprehended the requirements of the statute as to the amount of the bond and has filed a bond in the sum of $100, and after a lapse of thirty days the defendant has moved for a dismissal of •the aetion and the trial court denied the application, and thereafter required the plaintiff to immediately file an undertaking in the sum of $300, and the plaintiff forthwith complied therewith and filed Such an undertaking, held, that the failure to file the $300 bond within the thirty-day period did not ipso facto oust the court of jurisdiction, and that the subsequent filing of the required bond prior to a dismissal of the action will entitle the plaintiff to proceed with the prosecution of its aetion.</p>

Hon. Alfred Budge, Judge. A prosecution for the crime of murder.

<p>Action for Damages' — Joint Tort-feasors — Joint and Several Liability.</p> <p>1. When two or more persons unite in the commission of a wrong, or where separate and independent acts of negligence by different persons all concur as a proximate cause in producing an injury, such wrongdoers are jointly and severally liable for the damage resulting therefrom.</p> <p>2. In order to hold two or more defendants jointly liable as tortfeasors, there must be some joint or concurrent aet or community of action or a neglect of some common duty, or it must appear that the several wrongful acts of the defendants done at different times all concurred in their effects as a single aet to produce the injury complained of.</p> <p>3. Under the statute of this state, see. 3660 of the Eev. Codes, every successive owner of property who neglects to abate a continuing nuisance upon or in the use of such property created by a former owner is liable therefor in the same manner as the one who first created it, but this statute does not mean that such subsequent owner is liable for damages caused prior to his acquiring the ownership, possession or control of the property.</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.</p> <p>Action for damages. Judgment for defendants. Plaintiff appealed.</p> <p>Counsel cite same authorities on points decided as in Brose v. Twin Falls Land & Water Go. et al., ante, p. 266.</p>

Hon. Carl A. Davis, Judge. An action for divorce. Judgment for plaintiff. A party may not allege as a constituent ground of one cause of action for divorce facts which belong in a different category bnt are of themselves insufficient to justify divorce on the latter ground.

Hon. Carl A. Davis, Judge. Action for debt. Judgment for plaintiff. Defendant appealed. A complaint setting up a cause of action for services rendered as brokers and agents will not support a judgment based on a finding that the services rendered were really as middlemen.

Hon. Carl A. Davis, Judge. An action for commission for services as a broker on a sale of real estate. Judgment for plaintiff. If the witness was acquainted with the defendant’s voice, his testimony that he recognized his voice over the telephone. would have been admissible as evidence, and it might constitute proof of his identity, but there was no proof of recognition of defendant’s voice. (Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W. 1034; Swing v. Walker, 27 Pa. Super.

Hon. Ed. L. Bryan, Judge. Action for confirmation of bond issues of an irrigation district. Judgment for plaintiff. Defendant, a property owner, appealed. cites no authorities. An irrigation district organized under the irrigation laws of this state is a public corporation. (Hertle v. Hall, 9 Ida. 193, 72 Pae. 953; Pioneer Irr.

Hon. Ed. L. Bryan, Judge. Action for confirmation of bond issue of an irrigation district. Judgment for plaintiff. Defendant, a property owner, appealed. Counsel cite same authorities as in Little Willow Irrigation District v. Haynes, ante, p. 317.

<p>County Seat — Temporary and Permanent Location Thereof — Statutory and Constitutional Construction — Qualifications of Voters.</p> <p>1. The temporary eounty seat of Lewis county was established by the legislature, and by the act creating said county the legislature delegated the authority to establish the permanent eounty seat of said eounty to the electors of said county.</p> <p>2. Seld, that the vote east at said election for Do and Vollmer cannot be consolidated and counted together.</p> <p>3. The provisions of see. 2, art. 18, of the state constitution, and see. 357 of the Eev. Codes, refer to the removal of a eounty seat from its permanent location and not to the permanent location of a county seat where the .legislature has temporarily fixed the county seat of a new county and left it with the electors to select the permanent county seat.</p> <p>4. Under the provisions of said sections of the constitution and statute, no person is permitted to vote at an election held for the removal of a county seat that has been permanently fixed who has not resided in the county six months and in the precinct ninety days before he offers to vote.</p> <p>5. The legislature has plenary power in the creation of new counties, exeept as limited by the provisions of the constitution, and in creating new counties it has the authority to establish the permanent county seat, or it may delegate that power to the qualified electors of such new counties, and an election for sueh purpose is not held for the purpose of removing a eounty seat permanently located but for the purpose of locating a permanent eounty seat.</p> <p>6. Under the aet creating Lewis county, the legislature delegated the authority -to locate the permanent county seat of said eounty to the electors of said eounty qualified to vote at a general election.</p> <p>7. Seld, that the electors at said election were not required to reside in the county six months and in the precinct ninety days, but if they had the other qualifications and had resided in the state six months and in Lewis county thirty days, they were qualified to vote at such election.</p> <p>8. Seld, the evidence does not show that fraud or corruption was practiced at said election.</p>

<p>Reports of State Banks — Responsibility of Cashier for Reports— Defenses — Admissibility of Bank-book Entries — Admissibility of Oral Testimony Relating to Contents of Books.</p> <p>1. Where a report purporting to show the true condition of a state bank is prepared in typewritten form ready for the signature of the cashier of the bank, by other officers or clerks, and the cashier thereupon signs said report and delivers it to another person, said cashier has made such report, in contemplation of see. 7128 of the Bevised Codes of Idaho.</p> <p>2. Where a cashier has voluntarily signed such a report as is referred to in see. 7128 of the Bevised Codes, knowing what it was, sueh making of said report was “knowingly” done, and he is responsible for the truth of the statements therein, unless he can show that he was himself deceived without undue fault or negligence on his part.</p> <p>3. It is no defense to an information charging a cashier of a state bank with the making of a false report of its condition for him to plead that he signed the report at the request of a superior officer of such bank, without knowledge or investigation on his part as to the truth of the facts therein stated.</p> <p>4. Entries in the books of a state bank connected with or related to the portions of a report of the condition of such bank alleged in an information to be false are admissible in evidence against the cashier of such bank who assist's in or supervises -the keeping of such books, when the cashier is on trial charged with making such false report, without the necessity of any foundation being laid relative to their accuracy.</p> <p>5. Oral testimony regarding the contents of bank-books is not properly admissible in evidence before the portions of such books connected with the subject of inquiry are identified and admitted in evidence.</p> <p>6. Evidence in this ease examined, and held, that there is sufficient competent evidence in the record to sustain the verdict, especially inasmuch as the defendant admits signing the report charged in the information to be false, and evidence to the effect that sueh report was false is uncontradieted, and it appears elearly that the defendant signed said report without examining it and in entire disregard of whether it was true or false.</p>

Hon. Carl A. Davis, Judge. Action in assumpsit to recover the value of personal property where it was tortiously taken. Judgment for plaintiff. Held: from the earliest times, that assumpsit for goods sold and delivered may be maintained on facts constituting a conversion or theft.

Hon. C. O. Stoekslager, Judge. Action to recover for services as a broker. Judgment for plaintiff. The relation of principal and agent necessarily involved in this case depends upon, first, what, if anything, defendant employed plaintiff to do; second, whether or not such employment was carried out. {Williams v. McGrwiv, 52 Mich. 480, 18 N. W. 227; Castner v. Richardson, 18 Colo. 496, 33 Pac. 163; Eafp v. Cummins, 54 Pa. 394, 93 Am.

<p>Construction or Statutes — Repeal by Implication — Power to Collect a Tax Levy — "Warrant Indebtedness — Municipal Finance— Annual Appropriation.</p> <p>1. Sec. 2268 of the Rev. Codes, as amended by the 1911 Session of the legislature (1911 Sess. Laws, p. 266), authorizing and empowering cities and villages to levy a tax for general revenue purposes not to exceed twenty mills on the dollar in any one year, repealed that part of see. 2265 which fixed the maximum levy that might be made by cities and villages for general and incidental expenses at ten mills on the dollar.</p> <p>2. Sec. 18 of art. 3 of the constitution whieh provides that “No act shall be revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length,” is intended to prohibit the amendment of a section of a statute by reference, and requires that the amended statute be set out at full length. This constitutional provision, however, does not prohibit an amendment by implication; that is, it does not prohibit or forbid the seetion as amended in accordance with the foregoing provision of the constitution having the effect of repealing or amending some other section of the statute with which the amended section is in irreconcilable conflict. It was never intended by sec. 18 of art. 3 of the constitution to require the legislature to set out at full length all the sections of the statute that might possibly be affected either by way of repeal or amendment of some provision thereof by reason of being in conflict with the amendment.</p> <p>3. The power to levy a tax carries with it the implied power to employ the necessary means and procedure to execute the power and collect the revenue contemplated by the grant of power to make the levy.</p> <p>4. Sec. 2265 of the Rev. Codes requires the city council or board of trustees within the first quarter of each fiscal year to pass an ordinance to be termed the annual appropriation bill, and that such ordinance shall specify the objects and purposes for whieh the appropriations are made and amount appropriated for each object or purpose; and it also provides that if there be any outstanding warrant indebtedness, the council or board of trustees shall at the same time include in the annual appropriation “a special tax assessment of not to exceed ten mills on the dollar as shown by the last preceding assessment”' for the purpose of paying such warrant indebtedness. This provision, however, does not contemplate an aetual levy by the city authorities at the time of passing the appropriation bill for the purpose of paying the outstanding indebtedness, but it rather requires the council to make an appropriation of a lump sum for such purpose, and limits the amount that can be thus appropriated to not exceeding ten mills on the dollar on the assessed valuation of the eity at the last preceding annual assessment.</p> <p>5. A failure to include in the appropriation ordinance a specific appropriation for the payment of outstanding warrant indebtedness does not oust the city council of the power and authority to thereafter make such appropriation, or in case of a failure to do so prior to the time of certifying the tax levy for the city, it does not deprive them of the jurisdiction and power to certify a sufficient levy within the maximum prescribed by sec._ 2265 to meet the outstanding warrant indebtedness of such municipality.</p> <p>6. A publie or official duty devolved by law on an officer, a discharge of which may be enforced by legal process, may be discharged without compulsion of such process, and although not done at the time prescribed, may be voluntarily done or peremptorily enforced at any time thereafter, and before it is too late for the doing thereof to accomplish the results intended to be accomplished by such aet.</p>

<p>Irrigation District — Power to Contract — Power or Secretary or Interior to Make Contract With an Irrigation District.</p> <p>1. Held, that the Hillcrest Irrigation District was duly and regularly organized as an irrigation district under the laws of this state.</p> <p>2. Held, that all the necessaxy steps required by statute were taken to authorize the issuance of the Hillcrest Irrigation District bonds, amounting to $100,000.</p> <p>3. The Secretary of the Interior has the power to enter into a contract with an irrigation district under the provisions of the act of March 17, 1902, known as the reclamation act.</p> <p>4. Pioneer Irr. Dist. v. Stone, 23 Ida. 344, 130 Pae. 382, approved and followed.</p>

Hon. Edward A. Walters, Judge. Action to restrain and enjoin the issuance of bonds and mortgages. Held: that the corporation performs a public or quasi-public function, its right to mortgage its assets,- including its franchise (other, of course, than its franchise to be a corporation), cannot be assailed.

Hon. Carl A. Davis, Judge. Action for the cancelation of certain deeds and decree adjudging the plaintiff to hold the title to certain property in trust for the benefit of the inhabitants of Boise City. Judgment for the defendant. Plaintiff appealed.

An original application for an alternative writ of prohibition to the board of county commissioners. The notice for calling for the election does not contain an adequate statement of the purpose for which the bonds are to be issued.

<p>Eminent Domain — Condemnation—Eight op Appeal — Stay op Proceedings — Prohibition as a Remedy — Railroad Corporations— Public Highways.</p> <p>1. Where application is made for a writ prohibiting a trial judge from proceeding in a condemnation suit to appoint commissioners, and upon hearing said application is not contested as a proper remedy, this court will not pass upon the question as to whether or not prohibition is a proper remedy.</p> <p>2. Sec. 4807, Rev. Codes, as amended by Sess. Laws 1911, p. 367, provides that “An appeal may be taken to the supreme court from a district.court: 1. Prom a final judgment in an action or special proceeding commenced in the court in which the same is rendered .... within sixty days after the entry of such judgment.”</p> <p>3. See. 5228, Rev. Codes, provides: “Except as otherwise provided in this title, the provisions of this code relative to civil actions and new trials and appeals, are applicable to, and constitute, the rules of practice in the proceedings in this title.”</p> <p>4. The provisions of sec. 4807, as amended by Laws of 1911, p. 367, and sec. 5228, apply to and constitute the rules of practice in proceedings in condemnation actions.</p> <p>5. Sec. 4807, Rev. Codes, as amended by Sess. Laws 1911, p. 367, and see. 5228, relating to civil actions and new trials and appeals, are applicable to and constitute the rules of practice in proceedings in condemnation actions.</p> <p>6. When a judgment is rendered upon questions in issue, such as the right to condemn land and tire necessity for the condemnation, and the court makes findings upon such questions and renders a judgment in favor of the plaintiff that the right of condemnation exists and that the necessity exists, and the judgment affects substantial rights, and an appeal is taken to the supreme court from sueh judgment as provided by law, such judgment is a final judgment upon the issues presented in the condemnation proceedings whieh involve the right of the plaintiff in the action to maintain a condemnation action and the necessity of the condemnation of the lands sought to be condemned, and the judgment upon sueh issues from which the appeal is taken is the basis upon which demand is now made for a writ of prohibition, sueh judgment is not an interlocutory order, nonappealable, but is a final judgment upon the issues in a special proceeding, and may be reviewed on appeal.</p> <p>7. The sections of the statute heretofore cited, including sec. 5226, Rev. Codes, wherein it is expressly provided that the condemning party should be let into possession, clearly provide for an appeal from a final judgment in an action or special proceeding, and that sueh appeal does not stay or interfere with the rights of either party to the condemnation suit to proceed in the district court or upon an appeal as provided by law.'</p> <p>8. Art. 11, sec. 5 of the constitution provides: “All railroads shall be public highways and all railroad, transportation, and express companies shall be common carriers, and subject to legislative control,” and when a railroad is organized under the laws of the state as a railroad corporation and for public use, such railroad is governed by the constitutional provision and the statutes of the state, and all railroads are to be public highways and common carriers, subject to legislative control.”</p>

Original proceeding in this court for a writ of prohibition against the city of Moscow and its mayor and council. Council cite no authorities on points decided.

<p>APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Proceedings on objections by certain of the appellants to dismissal of the appeal in accordance with stipulation entered into by the attorneys for the respective parties.</p> <p>Prosecution of appeal allowed on conditions, in default of which appeal to be dismissed in accordance with stipulation.</p>

<p>Negligence — Damage for Wrongful Death — Sufficiency of Evidence — 1909 Employers’ Liability Law — 1909 Employers’ Liability Act Cumulative and not Repealing in Effect.</p> <p>1. Where a laborer working in a mine as loader and dumper on ore ears was aeeustomed to ride from the place of dumping the ore and waste back to the mouth of the tunnel on the bumper of the back ear, and it is shown that sueh place was unsafe for anyone to ride and that the laborer, after working a few days at this work, either fell off or was thrown from the bumper and run over and crushed by the ear, and it appears that the master had not furnished the workman with any other place that was more safe for him to ride or do his work, and that the master had been accustomed to allow other loaders to ride at this same place, held, that under the facts of this case the master is guilty of negligence and liable in damages for the death of the servant, and that the servant was not guilty of such contributory negligence as will defeat a recovery.</p> <p>2. Held, that house bill No. 26, enacted by the 1909 session of the legislature, which act relates to the liability of employers and masters, did not repeal see. 4100 of the Rev. Codes, which authorizes the prosecution of an aetion by the heirs or personal representatives of one whose death is caused by the wrongful act or neglect of another.</p> <p>3. Held, further, that the act of Mareh 6, 1909 (1909 Sess. Laws, p. 34), was intended to extend the rights of employees and limit the defenses of employers in eases of personal injury.</p> <p>4. Act of March 6, 1909, known as the employers’ liability act, is not in conflict with and does not repeal pre-existing statutes conferring the right of action for a death claim, and does not prevent the prosecution of an action under see. 4100 of the Rev. Codes.</p>

Hon. W. W. Woods, Judge. Action to enforce a trust. Demurrer to complaint sustained and judgment of dismissal entered. Judgment There is nothing to prevent the owner of property from conveying it to a person in trust to convey to a corporation when organized, and, when the corporation is organized, it may compel the trustee to convey it in accordance with the terms of the trust deed. (Clark & Marshall, Private Corps., sec. Ill; Hecla etc. Min.

Hon. Bobert N. Dunn, Judge. Action for damages for breach of the covenant of warranty. Answer and cross-complaint. Judgment for defendant. Plaintiff appealed. The property conveyed by the defendants is to be considered community property by virtue of the legal presumption arising from the fact that the land purported to be conveyed by them as husband and wife. (Alverson v. Jones, 10 Cal. 12, 70 Am.

<p>Platting or Lands — Dedication or Beach Land — Flooding or Lands —Damages Caused by Overblow — Permanent Nature or Injury —Statute or Limitations.</p> <p>1. Where the owner of a tract of land abutting on a lake lays it o'ut into lots and blocks, streets and avenues, and files a plat thereof, in accordance with law, noting on the plat the lots and bloeks and the dimensions of each and the streets and avenues, and between the lots nearest the water line and the water line designates a vacant strip of land varying from 25 to 100 feet in width as “beach” and “sand beach,” and files with the plat a dedication of the streets and avenues, the filing of such plat and dedication does not amount to a dedication of the beaeh to the public as it does of the streets and avenues designated on such plat.</p> <p>2. Where a dam has been ereeted across a stream which is the outlet to a large lake and body of water, and such dam is lawfully ereeted upon the premises of the owner of sueh dam, and a contrivance is erected upon the top of the dam so as to be raised and thereby raise the elevation of the water in the lake several feet above its usual and ordinary height, and this contrivance is raised eaeh season for the purpose of holding the water baek and maintaining it at a high-water stage during the latter part of the summer and autumn, and the same results in flooding and overflowing a sand beach used as a bathing beach during the summer season, and the owner of the beach sues for damages and alleges the flooding and injuries as occurring periodically and the damages as accruing during a particular season of the year from year to year, held, that a recovery may be had for each recurring flooding and injury and that the statute for each runs from the time of the occurrence of the injury.</p> <p>3. Held, further, that this case differs from the ease of Boise Valley Const. Co. v. Kroeger, 17 Ida. 384, 105 Pac. 1070, 28 L. B. A., N. S., 968, and the distinction and difference between the two cases pointed out and commented upon.</p> <p>4. Held, further, that in the present case separate recoveries might be had, and that the statute of limitations does not run for all time and against all recurring floodings and damages from the time of the infliction of the first injury or the erection of the structure whieh caused the flooding.</p>

<p>Fraudulent Conveyance — Setting Aside Deed — Purpose and Intent op Parties — Consideration—Judgment—Satisfaction — Compromise — Lien of Attorney.</p> <p>1. Where a judgment in an action does not run in favor of the attorney in the action, but in favor of the attorney’s client, the plaintiff, and the judgment is allowed for the purpose of compensating the client in the amount it is necessary for him to pay his attorney for prosecuting his action, the presumption is that the client has paid the attorney or is liable to pay him. The judgment entered belongs to the judgment creditor, and may be paid to him, and he may satisfy the same; he may compromise the judgment, or, if he sees fit to do so, he may give it to the judgment debtor. This, however, does not release the client from the obligation to pay the attorney any fee that he may owe him for the service. The obligation and liability of the client to the attorney, if not otherwise secured, is merely a personal liability of the client to the attorney.</p> <p>2. Prior to the enactment of the act approved March 7, 1911, Sess. Laws 1911-12, p. 563, there was no law of this state which provided for a lien for attorneys’ fees. The latter act, however, provides that from the commencement of an action or the service of an answer containing a counterclaim the attorney who appears for a party has a lien upon his client’s cause of aetion or counterclaim which attaches to a verdict, report, decision or judgment in his client’s favor, and cannot be affected by any settlement between the parties before or after judgment.</p> <p>3. In an aetion to set aside a deed of real property, where it is alleged, and evidence, is offered to prove the allegation, that said deed was made and accepted for the purpose of hindering, delaying and defrauding the plaintiff, the rule of law which especially applies to such case is, that fraud is not presumed, but must be established by clear and convincing evidence, and this is especially true where a party assails the integrity of a written instrument.</p> <p>4. The rule of law that governs a transaction and affects the validity of a deed of conveyance of real property, where the complaint alleges that the deed was made and accepted for the purpose of hindering, delaying and defrauding the plaintiff, and the evidence shows that there was no fraud and that a valuable consideration has been paid for the property, is, that the sale cannot be set aside at the instance of a creditor unless it is averred and shown that the purchaser knew of and participated in the fraudulent intent of the seller.</p>

<p>Personal Injuries — Directed Verdict — Judgment—Sufficiency of Evidence — Assumed Risk — Negligence—Instructions.</p> <p>1. Held, that the court did not err in overruling the appellant’s motion for a directed verdiet.</p> <p>2. Held, that the evidence is sufficient to sustain the verdiet of the jury, except as to the amount of damages.</p> <p>3. Held, that the giving of certain instructions was not error.</p> <p>4. Held, that the instructions given fairly stated the law of the case applicable to the issues and evidence.</p> <p>5. Held, that the judgment is excessive and must be reduced, and unless plaintiff consents to a reduction of the judgment to $4,000, a new trial is granted.</p>

<p>Action foe Bemoval feom Office — Bailuke to Peefobm Official Duty.</p> <p>1. Where an accusation has been filed against a publie officer and an answer has been filed, and the record on appeal fails to show that any evidence whatever was introduced and that after the case was “heard upon the complaint and answer filed,” a judgment of dismissal of the action was entered, held, that such judgment was regular and proper, and that the burden of proof was upon the plaintiff, and that the presumption arises that no evidence was introduced and that consequently the plaintiff failed to support the accusation by proper proofs; also held that if it be conceded that evidence was introduced, it will be presumed that it failed to support the accusation, and that a judgment of dismissal was ¡properly entered.</p>

<p>Real Estate — Title to — Trial—Continuance—Evidence—Admission or — Adverse Possession — Title by.</p> <p>1. A motion for a continuance is addressed to the sound discretion of the court, and its action thereon will not be disturbed unless it appears that such discretion has been abused.</p> <p>2. Held, that the court erred in admitting in evidence a certain letter from De Puy to Wray.</p> <p>3. Held, that the defendant did not acquire title to the real estate in controversy by adverse possession.</p>

Hon. John M. Flynn, Judge. An action by tbe plaintiff for salary under an alleged employment. Judgment for defendant. It was error for tbe court to exclude the evidence of tbe witness Barker and tbe rules and regulations of tbe defendant district which were offered. Tbe doctrine of equitable estoppel is applicable to all corporations. (Bissell v. City of Jeffersonville, 24 How.

<p>Negligence and Damages — Sufficiency of Evidence — Instructions— Damages Caused by Union of Agencies — Responsible and Irresponsible Agencies.</p> <p>1. Evidence in this case examined, and held that it was sufficient to go to the jury upon the question of the efficient or proximate eause of the injury and the negligence causing the injury.</p> <p>2. The following instruction held to be a correct statement of the law applicable to the facts of this case:</p> <p>“A person who negligently sets a fire is responsible for the damage done by it although such fire is joined by a fire set by another person and the two concurrently do the damage, if it appears that the first fire would have done the damage without the assistance of the second fire.</p> <p>“And so, in this case, if you find that the defendant negligently set a fire about one-half mile north of Coeolalla and that such fire spread from there to the plaintiff's premises and damaged his property, then you should find a verdict for the plaintiff even though you find that another fire mingled with said fire so set by the defendant, unless you should find that the fire so set by the defendant would not have done the damage to the plaintiff’s property without the assistance of the other fire.” /A : f> P- ></p> <p>3. Held, that appellant’s requested instruction No. 30 did not correctly state the law and was properly rejected.</p> <p>4. Held, that the following instruction states a correct principle of law which might properly be given where the facts of the case involve such question:</p> <p>“The court instructs you that if you find from the evidence that the damage to plaintiff’s property was caused by two or more fires uniting, and that only one of these fires was traceable to the fire alleged to have started on or near the Eaymond property, the other fires or any one of them not being traceable to any responsible origin, but being of such efficient or superior force that it would have produced the damage to plaintiff's property regardless of the fire which started on or near the Eaymond property, then X instruct you that the plaintiff cannot recover and your verdict must be for the defendant.”</p> <p>5. Where two independent causes, — one of responsible, the other of irresponsible origin, — unite or eoneur in producing an injury so as to contribute to the plaintiff’s damage, in so much that it can be said with reasonable certainty that the act of the defendant caused the injury and that the other and concurring cause set in motion by an irresponsible or unknown agency would not alone have sufficed to produce the injury, the defendant will be held liable. But if the other cause or superior force would have, at the same time and place, produced the same damage, whether defendant had been negligent or not, his negligence is not deemed the cause of the injury.</p> <p>6. No one is liable for damages sustained by reason of the aet of God or the forces of nature, but whoever by his wrongful act augments, diverts or accelerates those forces in such manner as to injure another is liable in damages therefor.</p>

Hon. Bobt. N. Dunn, Judge. Appellant was convicted of making a false report of tbe condition of a state bank and sentenced to tbe state penitentiary for a term not less than two years and not exceeding ten. Tbe indictment is insufficient, first, because tbe facts therein stated do not constitute a public offense, and, second, because it does not substantially conform to tbe requirements of see. 7679, Bev.

Hon. Robt. N. Dunn, Judge. Action to recover damages occasioned by forest fires. Judgment for the plaintiff. For authorities cited by counsel on points decided, see Miller v. Northern Pacific By. Co., ante, p. 567.

<p>Reformation of Contract — Weight of Evidence — Reasonable Doubt Rule — Mistake Result of Negligence.</p> <p>1. It is an established, rule in this state that a party seeking reformation of a contract or specific performance or pursuing any other civil remedy is not required to establish his case “beyond a reasonable doubt,” and that the rule requiring a case to be established “beyond a reasonable doubt” applies in this state only to criminal cases.</p> <p>2. The rule requiring a plaintiff seeking reformation of a contract or a specific performance to establish his case by clear and satisfactory evidence is a rule by which the trial court is to weigh and consider the evidence, and unless that rule has been substantially departed from by the trial court in arriving at his decision, the appellate court will not disturb the findings and judgment.</p> <p>3. The rule that “courts of equity will not relieve parties from the consequences of their own folly or assist them when their condition is attributable to their failure to exercise ordinary care for their protection,” will be administered by courts in the light of the facts and circumstances of each particular case with such discretion and flexibility as will accomplish substantial justice in the case then before the court.</p> <p>i. Pacts of this case examined and held sufficient to support the findings and judgment.</p>

<p>Corporations — Delinquent Assessments — Sale—Evidence—Motion for Judgment on Pleadings.</p> <p>1. Where several parties as promoters enter into a contract with the owner of mining property for the purchase of certain mining claims, and the promoters and the owner of the mines agree that a corporation will be formed by the promoters and stock will be issued and sold with a fixed capital, and that the owner of the mine will transfer the claims to the corporation after organization, and that the stock will be nonassessable until the promoters had paid 25 cents a share for the stock, and the owner accepted $33,000 worth of stock on the option, and the owner deeds the property to the corporation, which accepts the conveyance and ratifies and affirms the contract and accepts the benefits and conditions of the acts and contract of the promoters, and stoek is sold and issued to a purchaser with full knowledge of the transaction, such purchaser may maintain an action for the enforcement of the contract made .by the promoters and ratified and affirmed by the corporation.</p> <p>2. Where a corporation is organized under the laws of this state, and ratifies and affirms a promoters’ contract as to assessments, such corporation is bound by the terms of the promoters’ contract which provides “that the stock issued to us shall be subject to assessment up to 25 cents per share prior to any assessment on any other stock issued by the aforementioned company, until we have paid a total of 25 cents per share, when all the stock of the company will be subject to the assessment at the same time and on the same basis,” and such assessment up to 25 cents is not paid and an assessment is levied against the general stock of the corporation, such latter assessment is void.</p> <p>3. Sec.' 2758, Eev. Codes, which provides that the notiee of sale of stock in a corporation when published in a daily newspaper must be published for ten days, excluding Sunday and legal holidays, previous to the day of sale, and see. 2764, which provides that the notice of assessment may be extended from time to time for not more than thirty days by order of the directors, and no sueh order is effectual unless notiee of such extension or postponement is appended to and published with the notiee to which the order relates, construed with see. 2765, which provides no assessment is invalidated by a failure to make publication of the notices, nor by the nonperformance of any act required in order to enforce the payment of the same; but in ease of any serious error or omission in the course of proceedings for collection, all previous proceedings except the levying of assessment are void, and publication must begin anew, provide the procedure in the sale of stock of corporations.</p> <p>4. See. 2764, Eev. Codes, wherein it is provided, “but no such order is effectual unless notice of such extension or postponement is appended to, and published with, the notice to which the order relates,” is mandatory, and by a failure to comply with the same the sale is void.</p>

Hon. Robt. N. Dunn, Judge. Action by trustee in bankruptcy to have a certain alleged assignment by the bankrupt decláred fraudulent and void as to the trustee and creditors. Demurrer to the complaint sustained.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. J. M. Flynn, Judge.</p> <p>An action to recover for personal damages.</p> <p>A motion for a nonsuit should be granted only when the evidence wholly fails to support the demand of the plaintiff. (Adams v. Bunker Mill Min. Go., 12 Ida. 637, 89 Pac. 624, 11 L. R. A., N. S., 844; Idaho Comstock etc. Go. v. Lundstrum, 9 Ida. 257, 74 Pac. 975; York v. Pac. & No. By. Go., 8 Ida. 574, 69 Pac. 1042; Wheeler v. Oregon etc. Nav. Go., 16 Ida. 375, 102 Pac. 347.)</p> <p>The question as to whether or not the plaintiff was guilty of contributory negligence is for the jury to decide. It is their province to decide the fact of contributory negligence, even though the testimony of the defendant tends to establish that fact, if from the physical facts surrounding the accident a different conclusion might be reached. (Chesapeake & Ohio B. Co. v. Young’s Admr., 146 Ky. 317, 142 S. W. 709; Butcher v. Wabash B. B. Co., 241 Mo. 137, 145 S. W. 63; Dermis v. New Orleans B. Co. (Miss.), 32 So. 914.)</p> <p>“Where equally reasonable persons might conscientiously differ on the subject of contributory negligence, then the question is for the jury to decide.” (Greenawdldt v. Lake-shore B., 165 Ind. 219, 73 N. E. 910; Stoy v. Louisville B. B. Co., 160 Ind. 144, 66 N. E. 615; Mdlott v. Hawkins, 159 Ind. 127, 63 N. E. 308; Chicago B. & M. B. v. Harley, 74 Neb. 462, 104 N. W. 862; Christianson v. Oregon Short Line, 29 Utah, 192, 80 Pac. 746; Defrieze v. Illinois Central B. (Iowa), 94 N. W. 505; St. Louis (& S. F. B. Co. v. Knowles, 6 Kan. App. 790, 51 Pae. 230.)</p> <p>“It is not sufficient that evidence on behalf of defendant tended to show that deceased was guilty of contributory negligence, but before the court can declare this as a matter of law, the evidence must be substantially all one way and not such as reasonable men might differ with respect thereto.” (Weller v. C. M. & St. P. B. Co., 164 Mo. 180, 86 Am. St. 592, 64 S. W. 141; Hornstein v. United B. B. Co., 97 Mo. App. 271, 70 S. W. 1105; Biska v. Union Depot, 180 Mo. 168, 79 S. W. 445.)</p> <p>“Failure of one approaching a railroad crossing to look and listen is not negligence per se, but it is for the jury to' determine from all the attending circumstances whether ordinary and due care was used. ” (Galveston H. & S. A. B. Co. v. Harris, 22 Tex. Civ. App. 16, 53 S. W. 599; Schroeder v. Wisconsin Central B. Co., 117 Wis. 33, 93 N. W. 837; Staab v. Bocky Mt. Bell Tel. Co., 23 Ida. 314, 129 Pac. 1078; Denbeigh v. Oregon-Washington B. & N. Co., 23 Ida. 663, 132 Pac. 112; Tiffany, Death by Wrongful Act, sec. 189.)</p> <p>Negative evidénce from a person in position to hear a train whistle, bnt who testified that he did not hear it, constitutes some proof that there was no whistle. (Stotler v. Chicago B. Co., 200 Mo. 107, 98 S. W. 509; King v. St. Louis & S. F. B. Go. (Mo.), 127 S. W. 400.)</p> <p>“Where one party offers testimony to sustain his burden of proof, the other party, although offering nothing to contradict it, is entitled to have the jury pass upon the whole case, a direction of a verdict against him being improper. ’ ’ (Gannon v. La Clede Gas Light Go., 145 Mo. 502, 68 Am. St. 575, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505.)</p> <p>There is absolutely no evidence tending to prove negligence on the part of respondent. The negligence of respondent not being shown by any evidence, much less by a preponderance of the evidence, it follows that appellant cannot recover. (Chicago, B. & Q. B. Co. v. Church, 49-Colo. 582, 114 Pac. 299; Cent. Dig., “Negligence,” sees. 217-220; Dec. Dig., “Negligence,” sec. 121.)</p> <p>Even had respondent failed to comply with the provisions of see. 2821, Rev. Codes, this statute does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the negligence of the plaintiff contributed to and was the proximate cause of the injury. (Wheeler -v. Oregon B. B., 16 Ida. 375, 102 Pae. 347, citing Bumpel v. Oregon etc. By. Co., 4 Ida. 13, 35 Pae. 700, 22 L. R. A. 725, and cases cited.)</p> <p>This rule recognizes the right of a defendant charged with negligence to defend upon the ground of nonliability, by reason of contributory negligence on the part of the plaintiff. (Hophins v. Utah etc. By. Co., 2 Ida. 300, 13 Pac. 343; Adams v. Mining Co., 12 Ida. 6.37, 89 Pac. 624, 11 L. R. A, N. S., 844; Crawford v. Lumber Co., 12 Ida. 678, 87 Pac. 998, 10 Ann. Cas. 1.)</p> <p>Had plaintiff looked or listened, he could both have seen and heard the train before he drove upon the crossing. (Fleenor v. Oregon etc. B. Co., 16 Ida. 781, 102 Pae. 897; Colo. By. Co. v. Lauter, 21 Colo. App. 101, 121 Pac. 137; 41 Cent. Dig., “Railroads,” secs. 1117-1123; Dec. Dig., “Railroads,” see. 346.)</p> <p>A traveler on a public highway which crosses the railroad track upon approaching such crossing is bound to exercise care and caution by looking and listening for approaching trains, so as to avoid the danger of a collision. (Wabash etc. By. Go. v. Neikirk, 15 111. App. 172; Lake Shore etc. By. Co., v. Boyts (Ind. App.), 43 N. E. 667; Wichita etc. By. Co. v. Davis, 37 Kan. 743, 1 Am. St. 275, 16 Pac. 78; Lesan v. Maine Cent. By., 77 Me. 85; Maryland Cent. By. v. Neubeur, 62 Md. 391; Judson v. Bailroad, 63 Minn. 248, 65 N. W. 447; New Orleans etc. By. Co. v. Mitchell, 52 Miss. 808; Kimes v. St; Louis etc. By. Co., 85 Mo. 611; Pennsylvania Go. v. Batgeb, 32 Ohio St. 66; Pennsylvania etc. By. Co. v. Peters, 116 Pa. 206, 9 Atl. 317; Gulf etc. B. B. Co. v; Scott (Tex. Civ. App.), 27 S. W. 827; Hogan v. Tyler, 90 Ya. 19, 17 S. E. 723.)</p> <p>“A traveler upon-the highway who fails to look out for approaching railroad trains is guilty of negligence, and cannot recover for injuries received by a collision with a passing train.” {Baüroad v. Houston, 95 U. S. 697, 21 L. ed. 542; Wabash etc. B. Co. v. Hicks, 13 111. App. 407; Northern Cent. By. Co. v. State, 54 Md. 113; Leak v. Bailroad, 90 Ala. 161, 24 Am. St. 775, 8 So. 245; Herlick v. Louisville etc. B. Co., 44 La. Ann. 280, 10 So. 628; Magner v. Truesdale, 53 Minn. 436, 55 N. W. 607; Taylor v; Missouri Pac. By. Co., 86 Mo. 457; Texas etc. By. Co. v. Brown, 2 Tex. Civ. App. 281, 21 S. W. 424; Bockford etc. B. Co. v. By am, 80 111. 528.)</p> <p>It was plaintiff’s duty to stop, look and listen. (3 Elliott on Railroads, sec. 1095, p. 1648, and cases cited; Hamilton v. Delaware etc. B. Co., 50 N. J. L. 263, 13 Atl. 29; Omaha etc. By. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599; Berry v. Pennsylvania B. Co., 48 N. J. L. 141, 4 Atl. 303.)</p> <p>The track of a steam railroad is of itself a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains, and if the view of the track is obstructed he should take greater pains to listen. {Bilton v. S. P. Co., 148 Cal. 443, 113 Am. St. 285, 83 Pac. 440; Colo. & Southern By. v. Thomas, 33 Colo. 517, 81 Pac. 801, 3 Ann. Cas. 700, 70 B. E. A. 681; Missouri K. & T. By. v. Jenkins, 74 Kan. 487, 87 Pac. 702; Runs v. Ore. By. Co., 51 Or. 191, 93 Pac. 141, 94 Pac. 504; Westerkamp v. Chicago, B. & Q. By., 41 Colo. 290, 124 Am. St. 137, 92 Pac. 687,15 L. B. A., N. S., 554; Baker v. Tacoma Eastern By., 44 Wash. 575, 87 Pae. 826; Woolf v. Washington By. & Nav. Co., 37 Wash. 491, 79 Pac. 997.)</p> <p>A person attempting to cross a railroad track must make use of his ordinary faculties to ascertain if there is danger in the attempt, or he will be held guilty of negligence. (Go'iizales v. New York etc. B. Co., 38 N. Y. 440, 98 Am. Dec. 58; Salter v. Etica etc. B. B. Co., 75 N. Y. 273; Bailroad Co. v. Houston, 95 U. S. 697, 21 L. ed. 542.)</p> <p>The testimony “tending to show contributory negligence on the part of the deceased was so conclusive that nothing remained for the jury, and the defendant was entitled to an instruction to return a verdict in its favor. ’ ’ (Armstrong v. Spokane <& I. E. By., 71 Wash. 624, 129 Pac. 379; Cent. Dig., “Negligence,” secs. 227-352; Dec. Dig., “Negligence,” sec. 136; McKissick v. Oregon Short Line By., 13 Ida. 195, 89 Pae. 629; 29 Cye. 629; Kansas Pacific By. v. Pointer, 14 Kan. 37.).</p>

Hon. R. N. Dunn, Judge. Prosecution on the charge of murder. Conviction of murder in the second degree. Defendant appealed. Instructions should be in harmony with the facts in the ease or the theories of the defense or prosecution and should be germane, and should be free of argument, intimation or insinuation. (1 Briekwood, Sackett’s Instructions, 3d ed., 171-176; Whitman v. McComas, 11 Ida. 564, 83 Pac. 604; Gwin v. Gwin, 5 Ida. 271, 48 Pac. 295; Idaho Mer.

Hon. R. N. Dunn, Judge. A motion for appointment of receiver. If the order did not have to be entered or filed before it became effective, then counsel for respondent could have kept the order indefinitely and enjoyed all the fruits of the order, at the same time not allowing the objecting parties who were injured thereby the right of appeal therefrom. (State ex rel.

Hon. John M. Flynn, Judge. Action by the administratrix of the estate of a deceased partner against the surviving party for an accounting and settlement of the affairs of the partnership, and for judgment and decree for the amount due the estate. Judgment for the plaintiff. A surviving partner is entitled to charge for expenses and services in carrying on firm litigation.

Hon. R. N. Dunn, Judge. Action upon promissory notes secured by mortgage. Money paid.without consideration, under mistake of law and not owing in law or conscience and which ought not to be retained, may be recovered back. (Lowndes v. Chisolm (S. C.), 2 McCord’s Ch. 455, 16 Am. Dec. 667; Culbreath v. Culbreath, 7 Ga..64, 50 Am. Dec. 375; Warder v. Tucker, 7-Mass. 449, 5 Am. Dee. 62; Lawrence v. Beaubien, 2 Bail. (S. C.) 623, 23 Am. Dec. 155; McMurtry v. Kentucky Cent.

<p>APPEAL from tbe District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action to recover for personal injuries sustained by the plaintiff by reason of an obstruction over the sidewalk in the city of Wallace. Judgment for plaintiff.</p> <p>It is not made the defendant city’s duty to perform the governmental function of removing obstructions from the sidewalks or preventing or removing all encroachments upon or into sidewalks, but the power is simply vested in the city to enact ordinances or by-laws for these purposes. (4 Dill. Mun. Corp., '5th ed., sec. 1627, and cases there cited; Marth v. City of Kingfisher, 22 Okl. 602, 98 Pac. 436, 18 L. R. A., N. S., 1238; Wheeler v. City of Plymouth, 116 Ind. 158, 9 Am. St. 837, 18 N. E. 532; Bines v. City of Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844; Dooley v. Town of Sullivan, 112 Ind. 451, 2 Am. St. 209, 14 N. E. 566; Culver v. City of S treat or, 130 111. 238, 22 N. E. 810, 6 L. R. A. 270; McDade v. Chester City, 117 Pa. 414, 2 Am. St. 681, 12 Atl. 421; Loth v. Columbia Theatre Co., 197 Mo. 328, 94 S. W. 847.)</p> <p>The authority vested in the city to enact an ordinance to remove the sign was a governmental power and the failure to enact, or even if enacted to enforce, would not render the city liable by reason of any injury caused through such failure. (Dyer v. City of Danbury, 85 Conn. 128, 81 Atl. 958, 39 L. R. A., N. S., 405, Ann. Cas. 1913A, 784.)</p> <p>Objects which have no necessary connection with the sidewalk or relation to public travel, and the danger from which arises from casual proximity and not from the purpose of traveling thereon, will not render the sidewalk defective. (Bixon v. City of Lowell, 13 Gray (79 Mass.), 59; Mc-Loughlin v. Philadelphia, 142 Pa. 80, 21 Atl. 754; Loth v. Columbia Theatre Co., supra; Dyer v. City of Danbury, supra; Banrahan v. City of Chicago, 145 111. App. 38.)</p> <p>The sign in question was not such a defect that a reasonably careful and observing man would notice. How, then, can it be said that it was such a patent defect as to impart notice to the city? (City of Fremont v. Dunlap, 69 Ohio St. 286, 69 N. E. 561.)</p> <p>“A municipality is not an insurer against all defects, latent as well as patent, but its liability is for negligence.” (28 Cye. 1394, and authorities cited; Cook v. Anamosa, 66 Iowa, 427, 23 N. W. 907; Otto Tp. v. Wolf, 106 Pa. 608.)</p> <p>The sign in question, if a defect at all, was such an obscure defect that it would not impart constructive notice to any officer. All that is required is that the city keep its streets and walks in a reasonably safe condition. (Miller v. Tillage of Mullan, 17 Ida. 28, 104 Pac. 660, 19 Ann. Cas. 1107.)</p> <p>A municipality is not guilty of neglect for every act of omission which would constitute negligence on the part of an individual. (Moretón v. Tillage of St. Anthony, 9 Ida. '532, 75 Pae. 262.)</p> <p>There can be no recovery for injuries which might have been caused by several different agencies, some of which defendant was not responsible for, without proof of what was the cause of the injury. {Kenneson v. West End St. By. Go., 168 Mass. 1, 46 N. E. 114; Shore v. American Bridge Co., Ill Mo. App. 278, 86 S. W. 905; Meehan v. Great Northern By. Co., 13 N. D. 432, 101 N. W. 183; Mushach v. Wisconsin Chair Co., 108 Wis. 57, 84 N. W. 36; Niekey v. Steuder, 164 Ind. 189, 73 N. E. 117; Searles v. Manhattan By. Co., 101 N. Y. 661, 5 N. E. 66.)</p> <p>The city of Wallace is a municipal corporation organized under the general laws which granted to municipal corporations exclusive control over the streets, avenues and alleys within its corporate limits, and this court has expressly held such a municipal corporation liable for damages for its negligence in the leading case of Carson v. City of Genesee, 9 Ida. 244, 108 Am. St. 127, 74 Pae. 862. (See, also, Moretón v. Tillage of St. Anthony, 9 Ida. 532, 75 Pae. 262; Tillage of Sand-point v. Boyle, 11 Ida. 642, 83 Pac. 598; Eaton v. City of Weiser, 12 Ida. 544, 118 Am. St. 225, 86 Pac. 541; Powers v. Boise City, 22 Ida. 286, 125 Pae. 194; Giffen v. City of Lewis-ton, 6 Ida. 231, 55 Pac. 545; McLean v. City of Lewiston, 8 Ida. 472, 69 Pae. 478; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pae. 705.)</p> <p>“The city is not absolved from liability for negligently permitting a dangerous' awning to overhang the street, by the fact that the council has failed to pass an appropriate ordinance for the removal and abatement of nuisances, obstructions or encroachments upon the streets.” (Bohen v. City of Waseca, 32 Minn. 176, 50 Am. Bep. 564, 19 N. W. 730; Leary v. City of Yonkers, 95 App. Div. 126, 88 N. Y. Supp. 829.)</p> <p>This duty is not confined entirely to obstructions upon the walk, but also applies as well to everything hanging over the walk that may render such travel unsafe. (Larson v. City of Grand Forks, 3 Dak. 307, 19 N. W. 414; Talbot v. City of Taunton, 140 Mass. 552, 5 N. E. 616.)</p> <p>It is not necessary for the appellant to show that the city or any of the authorities of the city had actual notice of the obstruction. It was a question for the jury to say whether, under the circumstances of the case, the obstruction was of such a dangerous character and had remained in the position it was at the time of the injury to Mr. Baillie a sufficient time to put the city upon notice that the same was dangerous. {Powers v. Boise City, supra; James v. City of Seattle, 68 Wash. 359, 123 Pae. 472; Miller v. City of Mullan, 17 Ida. 28,104 Pac. 660,19 Ann. Cas. 1107; Bailey v. City of Winston, 157 N. C. 252, 72 S. E. 966; Kunz v. City of Troy, 104 N. Y. 344, 58 Am. Bep. 508, 10 N. E. 442.; Weed v. Village of Ballston Spa, 76 N. Y. 329, 330; Schroth v. City of Prescott, 68 Wis. 678, 32 N. W. 621; Fortin v. East Hampton, 145 Mass. 196, 13 N. E. 599; City of Covington v. Johnson, 24 Ky. Law Bep. 602, 69 S. W. 703; Larson v. City of Grand Forks, 3 Dak. 307, 19 N. W. 414; Dondono v. City of Indianapolis, 44 Ind. App. 366, 89 N. E. 421; City of Louisville v. Michels, 24 Ky. Law Bep. 1375, 71 S. W. 511; Manchester v. City of Hartford, 30 Conn. 118; City of Springfield v. Doyle, 76 111. 202; Schiveickhart v. St. Louis, 2 Mo. App. 571; Dundas v. City of Lansing, 75 Mich. 499, 13 Am. St. 457, 42 N. W. 1011, 5 L. R. A. 144; Saulsburg v. City of Ithaca, 94 N. Y. 27, 46 Am. Rep. 122.)</p> <p>If the defect is obvious and open to common observation, the municipality is charged with constructive notice of a defect in a highway. (Campbell v. City of Kalamazoo, 80 Mich. 655, 45 N. W. 652; City of Madison v. Baker, 103 Ind. 41, 2 N. E. 236; Bellamy v. City of Atlanta, 75 Ga. 167; City of Warsaw v. Dunlap, 112 Ind. '576, 11 N. E. 623, 14 N. E. 568.)</p> <p>If the city did not have actual notice of the defect in the public way, — if, in the exercise of ordinary care it could have discovered the defect, it is liable. (Lyon v. City of Logamsport, 9 Ind. App. 21, 35 N. E. 128; City of Columbia v. Langhor, 20 Ind. App. 395, 50 N. E. 831; City of Indianapolis v. Mitchell, 27 Ind. App. 589, 61 N. E. 947; Michigan City v. Ballance, 123 Ind. 334, 24 N. E. 117; City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119; Town of Fairfax v. Qiraud, 35 Old. 659, 131 Pae. 159.)</p> <p>It was for the jury to say what was the proximate cause of the injury to the respondent. (Baillie v. City of Wallace, 22 Ida. 702, 127 Pac. 908; Milwaukee & St. Paul B. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256; Adams v. Bunker Hill etc. Min. Co., 12 Ida. 639, 89 Pac. 624, 11 L. R. A., N. S., 844; Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pac. 9.)</p> <p>If two verdicts have been returned in the same action for the same sum, the second will not be disturbed. (4 Sutherland on Damages, 3d ed., p. 3670; McDonald v. Postal Tel. Co., 22 R. I. 131, 46 Atl. 407.)</p>

<p>Beal Estate — Action to Quiet Title — Appeal—Motion to Dismiss— Evidence — Rejection op.</p> <p>1. Where a party is named as one of the defendants and the record fails to show that the summons was served on him or that •he appeared in any manner in the case, and neither the findings of fact nor the judgment refer to him in any manner, it is not necessary to serve the notice of appeal on him, as he is not an ■adverse party under the provisions of sec. 4808, Rev. Codes.</p> <p>2. Where an action is brought to quiet title to real estate and the trial court rejects certain evidence that ought to have been admitted, and it appears to the appellate court that if all the evidence offered by the plaintiff had been admitted the plaintiff would not have been entitled to any relief, the judgment will not ■be reversed on the ground that the court rejected certain evidence that ought to have been admitted.</p> <p>3. If a court makes an error in the rejection of evidence but arrives at a correct conclusion in the ease, provided the rejected evidence had been admitted, the judgment will not be reversed because of such error.</p> <p>4. Held, that if the rejected evidence had been admitted it would have been reversible error for the trial court to have entered judgment for the plaintiff.</p> <p>5. Held, that the judgment must be modified to the extent of requiring McIIhargey to pay the taxes and interest as stated in the opinion.</p>

<p>Judgment on Pleadings — Corporate Bonds and Mortgage — Constitutional Law — Solvency oe Corporation — Intervention—Eight'op Amendment.</p> <p>1. As to whether a corporation may, under the provisions of sec. 9, art. 11, of the state constitution, issue its bonds secured by mortgage for the payment of pre-existing indebtedness or for a pledge as collateral for pre-existing indebtedness, mooted but not decided.</p> <p>2. Where a third party seeks to intervene in a foreclosure suit and to have the mortgage or trust deed which is sought to be foreclosed set aside and canceled on the ground that it was issued by a corporation in violation of sec. 9 of art. 11 of the state constitution, and the intervenor alleges that it has a valid claim against the corporation which executed such mortgage whieh the corporation should pay, but fails to allege the insolvency of the corporation, or to show that intervenor has prosecuted its claim to judgment, or has made any attempt or effort to collect the same from the corporation, or that an attempt to do so would have been useless or futile, and has failed to allege that the corporation was unable to meet the obligation or that the same could.not be collected from the corporation, held, that the complaint in intervention does not state facts sufficient to entitle intervenor to any relief in the foreclosure suit.</p> <p>3. The assumption by the purchaser of real property of a preexisting mortgage indebtedness as a part of the purchase price of such property constitutes a valuable consideration for the sale and transfer of the property.</p> <p>4. The fact that a corporation has failed to pay interest on its bonds as the same fell due would constitute a circumstance as a part of the proof showing that such corporation was insolvent; but, standing alone as an isolated faet set up in the pleading, it is not sufficient from which a court may draw the conclusion or find that the corporation so failing to pay interest was insolvent.</p> <p>•5. The faet that one cannot or does not meet his obligations as they fall due does not of itself establish the faet that he is insolvent.</p> <p>6. In order to render the provisions of sec. 15, art. 11, of the state constitution applicable to the sale or transfer of the property of a corporation, it must appear that the debt whieh it is sought to recover was “contracted or incurred in the operation, use or enjoyment” of the franchise or privileges accorded to such corporation under the constitution or statutes of the state.</p> <p>7. Under the provisions of sec. 4111 of the Rev. Codes, any party may intervene in an action who has “an interest in the matter in litigation, in the success of either of the parties or an interest against both.”</p> <p>8. Where a motion is made by the plaintiff for a judgment on the pleadings, and an intervenor who has filed his complaint in intervention stands upon his complaint and argues the same and submits the matter to the judgment of the eourt, and it does not appear that he was taken by surprise, or in any way taken unawares, after the motion was granted and judgment was entered in favor of the plaintiff as prayed for by the complaint, it was too late for the intervenor to move to vacate and set aside the judgment and for leave to file an amended complaint in intervention, and the trial court properly denied such a motion.</p>

<p>Power of Court to Correct Record — Criminal Law — Resistance of Officer — Intent in Resisting Officer.</p> <p>1. Where a court of record discovers that the minute entry of an order of court is false and does not correetly state the order, the court has the power and jurisdiction to correct the same so as to make the record speak the truth.</p> <p>2. In a prosecution under see. 6515 of the Rev. Codes, for resisting an officer in the discharge of his duty, it is not necessary that the resistance should have been made with any particular intent of violating the law or injuring the officer or anyone else, but it is essential that the person making the resistance should have had knowledge that the person resisted was an officer and that he was engaged in the discharge of, or the attempt to discharge, an official duty.</p> <p>3. In a prosecution for unlawfully resisting or obstructing an officer in the discharge of his official duty, it is no defense for the defendant to show that threats had been made against him by other parties or that at the time he was in fear of bodily injury being inflicted upon him or his property being injured or destroyed.</p> <p>' 4. Evidence examined in this ease and held sufficient to support the verdict.</p> <p>5. Facts and' circumstances of this case examined and held that the judgment is excessive, and it is modified accordingly.</p>

Hon. C. O. Stoekslager, Judge. Action of claim and delivery. Judgment for defendant. Appealed.

Hon. Edward A. Walters, Judge. An action to establish a trust in certain real property. No copy of the articles, of incorporation of this corporation certified to by the Secretary of State of Wyoming was filed with the recorder of Lincoln connty, Idaho, until June 26, 1911, nor with the Secretary of State of Idaho until July 3, 1911, both of which were more than two years after the transactions in this cause had been had and several months after the present action was filed.