Volume 24 — South Dakota Reports

<p>On rehearing.</p> <p>Hon Charbbs S. Whiting,</p> <p>Judge.</p>

<p>Plaintiff, in an action before a justice of the .peace, which, was dismissed, with costs, for plaintiff’s failure to prosecute, has a statutory right to appeal and demand a trial de novo in the circuit court. ,</p> <p>The order of a justice of the peace, dismissing an action and taxing costs against plaintiff, is a “final judgment,” from which an appeal may be taken as authorized by Justices’ Code, § 99.</p> <p>A motion to dismiss an appeal from a justice of the peace is ineffective where six days’ written notice thereof was not served, the objection not being based on want of jurisdiction.</p>

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Action by John G. Ewald and another against William G. Boyd. Judgment for plaintiffs, and defendant appeals.</p>

Hon. W. G. Rice, Judge. Action by Edward J. Drake and others against the Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals. Failure of a firm to publish and file certificates disclosing the names and residences of the partners, as required by Civ. Code, § 1762, cannot be cured after action brought by the firm, where the effect of the omission has been properly raised by answer in the nature of a plea in abatement.

County. Hon. Gjjorge H. Marquis, Judge. Action by A. H. Sluman against Charles R. Dolan. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Hon. Chas. S. Whiting, Judge. Action by A. M. Grasinger against C. E. Lucas and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. An agent will never be allowed to place himself in a position in which his duty and interest conflict, or be permitted to make a secret profit out of his agency, ist Ed. Ency. of Law, Vol. x, page 372; Raisen v. Clark, 20 Am.

xAppeal from Circuit Court, Roberts County. Hon. J. H. McCoy, Judge. Action by Gilbert Goldberg and another against the Sisseton Loan & Title Company and others. Judgment for plaintiffs. Defendants appeal. Judgments and decrees are conclusive only as between parties and privies to. the ligitation. Grace v. Ballou, 4 S. D. 333; Black on Judgments, Vol. 2, § 534.

Hon. Joseph W. Jones, Judge. Action by the Bruce-Fdgerton Lumber Company against the Masonic Building Association and others. From a judgment for plaintiff, and from an order- denying a motion for a new trial, defendant association appeals.

Hon. Chas. S. Whiting, Judge. Action by Z. W. Thomas against J. W. Ryan and another. From a judgment, for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Brule County. Hon. Frank B. Smith, Judge.</p> <p>Action by Dennis McCarthy against D. M. Fell. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p>

<p>The -word “meritorious,” as used in connection with a “meritorious defense,” means that the defense is good and lawful, and, when pleaded properly in time, must be recognized as a good lawful defense. 'While any defense given by statute is meritorious, it does not follow that for that reason it has merit equal to any other defense, thus removing from the courts the right to descriminate between different defenses, so that, where it appears that a defense otherwise meritorious when offered for the first time in an amended pleading if allowed would work an injustice instead of a justice, the court should refuse it.</p> <p>Plaintiff, as assignee, sued on certain notes given by defendant and his partner for farm machinery to a foreign corporation. Service was made on May 8, 1906, and on the 22d defendant interposed a general denial and an express denial of the allegations as to the giving of the note and the consideration. Defendant on August 25th moved for an order allowing him to serve an amended answer to interpose the defense that the payee was a foreign corporation which had not complied with the laws of the state, and that plaintiff received the notes with full knowledge of the fact. It did not appear that the payee had in any manner through its being a foreign corporation injured defendant, nor was any excuse given for defendant’s failure to plead such defense originally except an alleged custom between the offices of plaintiff’s and defendant’s attorneys to accept service of pleading after time, unless such delayed service would jeopardize the trial at a particular term of court, which it was claimed the amendment would not do. Held, that the amendment was properly disallowed notwithstanding the custom.</p>

Hon. Frank P>. Smith, Judge. Action by M. A. Reeves against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Matters concerning, which the jury can form an opinion, as intelligently as can the witness, are inadmissible in evidence. Neil-son v. C. etc. Ry. Co., 59 Wis. 516; Watson v. Ry. Co., 57 Wis. 332. Whether there was anything unusual in the appearance of a mail train at a railway crossing is a conclusion and not a fact.

Hon. Cuas. S. Wi-iiting, Judge. Mandamus on petition of Charles M. Stephens and others against William J. Jones and others. From a decree for complainants, defendants appeal.

<p>Where it was admitted that plaintiff’s deed, containing an alleged alteration' in the name of the grantee, was in its altered condition when delivered to plaintiff, and it was not claimed that any alteration was made hy him, or with his knowledge or consent, it would he presumed that the alteration was made before delivery of the deed, and hence plaintiff was not hound to explain the same as a condition precedent to its admission in evidence.</p> <p>In determining defendant’s motion for a directed verdict, plaincilf will be accorded the benefit of all reasonable inferences arising from the evidence, which will be construed most favorably for the plaintiff and as though uncontradicted.</p> <p>Where defendant and his broker represented to plaintiff that land sold to plaintiff at a stated amount per acre contained 152 acres, and plaintiff paid for the land on that basis, and it turned out that it contained only 108 acres, piaintiff was entitled to recover the difference in the consideration.</p> <p>Where a copy of a deed annexed to a complaint purported to have been executed to plaintiff and gave defendant full information as to plaintiff’s claim that defendant conveyed the land to him, defendant was not entitled to a new trial for surprise on the theory .that he conveyed the land to another, and that .the deed had been caltered by inserting plaintiff’s name as grantee.</p> <p>Where defendant had testified on the issue as to whether he had executed a deed in controversy to plaintiff or to another, and that the deed had been' altered by inserting plaintiff’s name as grantee, alleged newly discovered evidence that the original deed was not in fact executed to plaintiff was cumulative, and not ground for a new trial.</p> <p>A new trial for newly discovered evidence will not be granted, in the absence of a showing of diligence.</p> <p>Where facts proposed to be set out in a supplemental answer could have been interposed as a defense or counterclaim in the action, it was not an abuse of discretion to deny defendant’s motion for leave to file a 'supplemental answer.</p>

Hon. William G. Ricé, Judge. Elija Raicé was convicted of manslaughter, and he appeals. The instruction asked was erroneous because it authorized the jury to disregard all of the evidence of the impeached witness, when there should have been added to it the qualifying phrase, unless such testimony was corroborated by other credible evidence.” Moran v. People, 45 N. E. 230; Peak v. People, 76 111. 289; E.'Dohman Co. v. Niagara Ins.

Hon. J. H. McCoy, Judge. Action by May N. Bailey against Byron A. Walton and others. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

<p>Plaintiff contracted with a husband to build a house. upon property, the title to which was in the wife. . He relied in no manner on the property as security, but contracted for collateral security for the entire amount of the contract. The husband failed to comply with the terms of the original contract, but under a supplemental contract deposited the money as agreed in the original contract to the order of plaintiff’s bondsmen. Held, in an action against both husband and wife to enforce a mechanic’s lien against the property and to recover a money judgment against the defendants, that, in the absence of a showing that the wife knew of the husband’s failure to put up the collateral security, there was no implied agreement on her part to ,pay for the building because she knew of its erection; it being presumed that she supposed it was being constructed under the written contract, and there could be no personal judgment against the wife.</p> <p>There being no contract express or implied with the wife, and the title to the property being in her, plaintiff was not entitled to a mechanic’s lien against the property.</p> <p>Had the title been in the husband, the contractor could not claim a mechanic’s lien, since prior to the time of filing the lien he had received collateral security; the deposit of the money subject to the order of -the contractor’s bonds-men in accordance with the condition of the supplemental contract being security for the payment of -the contract price of the house. /</p> <p>Where findings of the trial court are • based upon conflicting evidence, they will not be disturbed on appeal.</p>

Appeals from Circuit Court, McPherson County. Hon Lyman T. Bouciiiír, Judge. Two actions, one criminal and the other civil, .by the State against the Central Lumber Company for violation of Laws 1907, p. 196, c. 131. In the criminal action there' was. a conviction and an order denying a new trial, ■ and in the civil case a demurrer to the complaint was overruled, and defendant appealed in both cases, which were consolidated on appeal. 1. Unlawful Discrimination.

<p>Appeal from Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge.</p> <p>Frederick W. Kruse wais convicted of adultery, and appeals.</p>

Hon. Lyman T. Boucher, Judge. Action by Saunders P. Jones and- another, doing business under the name of Paul Jones & Co*., against Robt. L. Yokum. Judgment for plaintiffs, and defendant appeals.

<p>Tbe purchaser's only remedy against a vendor having no title is a .suit for damages for breach of contract.</p> <p>Where the complaint is for both legal and equitable relief, as authorized by Code Civ. Proc. § 144, and the former alone is warranted by the facts alleged, the court should not dismiss the case according to the old practice, but should transfer it to the jury calendar if the rights of the parties demand it.</p> <p>Where plaintiff, knowing that equitable relief is impossible by reason of defendant’s want of title, joins in hi-s complaint for damages for breach of contract a claim for specific performance, it is error .to refuse defendant a trial by jury.</p>

<p>Error to Circuit Court, Lyman County. Hon. Frank B. Smith, Judge.</p> <p>John Harvey was convicted of an offense, and brings error.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph YV. Jones, Judge.</p> <p>Action by D. J. YVhitcher against J. A. Cooley and another. From an order denying a motion -to set aside the judgment, defendant J. A. Cooley appeals.</p>

<p>A sale of personal property by the pledgee or mortgagee, after default, not at public sale and on public notice, as required by Civ. Code, § 2123, is a conversion' of the property, which, under section 2 038, extinguishes the Hen of the mortgage or pledge.</p> <p>A mortgage, though in the form of a bill of sale, is within Civ. Code, § 2091, requiring, at delivery of a chattel mortgage, that the mortgagee deliver a copy thereof to the mortgagor, and section 2092, prohibiting the register of deeds from receiving -or filing a chattel mortgage not reciting, over signature of the mortgagor, receipt by him of such copy, for omission of which receipt the mortgage is declared void, and for omission of which the filing is a nullity.</p> <p>A bill of sale intended as an absolute transfer of title, but'.with a secret agreement by which the grantor reserved an interest in the goods, it being agreed that the grantee, after selling enough goods to pay the grantor’s indebtedness t'o him, should turn back to the grantor the remainder or their proceeds, was fraudulent as to creditors. and void.</p> <p>Civ. Code, § 2371, providing that the question of fraudulent intent is one of fact and not of law, does not prevent direction of a verdict, where, on the fact undisputed or admitted, independently of the question of actual fraudulent intent, the instrument, on which the rights of the parties depends, being either a pledge, chattel mortgage, or absolute conveyance of title, with a secret reservation of interest, is void, or its lien has been destroyed by the act of the party to whom it was given.</p>

Hon. Levi McGee, Judge. Action by Anna A. Albien against J. R. Smith, receiver of the \V. H. Walling, Mercantile Company, and W. H. Walling, to recover ^possession of mortgaged property, or the value thereof. A verdict was directed for plaintiff on all issues, except the value of the property, which was found by the jury. From the judgment and an order denying a new trial, defendant J. R. Smith appeals.

Hon. J. H. McCoy, Judge. ‘ ' Action by Adolph Anderson against E. R. Drake. 'From a judgment for defendant and an order 'denying- a new trial, plaintiff appeals. Where two parcels of land belonging to different owners are adjacent to each other and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from- it, provided the industy of man has not been used to create the servitude.

Hon. Levi McGee, Judge. Action by Charles M. Cook against William F. Cook and others. Judgment for defendants, and plaintiff appeals.

<p>A verdict on conflicting evidence will not be disturbed.</p> <p>Where a complaint alleged that defendant agreed to pay plaintiff for assisting in the collection of certain notes and mortgages, but no particular method of making the collection was specified, plaintiff was entitled to recover on showing that he had procured money from a hank hy becoming personally bound therefor, and that the same bad been received by defendant on bis transferring to the bank tbe note and mortgage without recourse.</p>

<p>Appeal from Circuit Court, Codington County. Hon. George H. Marquis, Judge.</p> <p>Action by J. G. Brown against J. L,. Smith. Judgment for plaintiff. Defendant appeals.</p>

Lion. Lymam T. Boucii^R, Judge. Action by Ellen Clifford against Hyde County and another to set aside a tax judgment and certificate. From á judgment for complainant, defendants appeal.

<p>Under contract appointing plaintiff agent to solicit purchasers for defandant’s lands, he stipulating to represent no one else having lands in the same county for sale, and to devote as much time as possible to representing defendant’s lands, and to distributing advertising matter relative thereto furnished hy defendant, and to advertise the lands at his own expense in local papers, providing that “for all buyers procured by him,” it is agreed for services rendered in sales of land made by the assistance of “plaintiff defendant shall pay him SI per acre on all sales so made,” a sale need not be made solely by the efforts of plaintiff to entitle him to a commission, though the words “for ail buyers procured hy him” is written in, while the rest is printed, the terms of the contract not being materi-, ally qualified thereby; so that .plaintiff, having first called the attention of S. to the lands, and presented the matter to him several times, and succeeded in interesting him therein, resulting in a sale to him by defendant, was entitled to commissions, though. S. before completing the purchase corresponded with his cousin, who was also an agent of defendant, in regard to making a selection of land for him, plaintiff still being the moving cause in procuring the sale.</p> <p>The one who made the purchase of lands, for sale of which plaintiff seeks to' recover commissions, may not state who was the source of the chief inducement which caused him to make the purchase, or whether it was the statements and representations of plaintiff or of another that induced him to purchase, as this would be his conclusion and his opinion on the merits of the controversy.</p>

<p>Where a regular customer of and depositor in a bank had an understanding with the bank by which he was to deposit out of town checks and receive credit therefor, but was to be charged with checks which were not paid, and no charge was to be made for collecting such checks, the bank takes such a check for collection only, and is not a purchaser thereof.</p> <p>When an agent employs another person to assist him in transacting the affairs of his principal, the person so employed is a “sub-agent”; and authority to appoint a subagent is usually implied where, from the nature of the agency, such employment is necessary, and where the ágent has authority to employ subagents he will not be liable for the acts or omissions of the subagent, unless in the appointment of s.uch subagent he is guilty of fraud or co-operates with the subagent in such acts or omissions; and this rule seems to be in accordance with Civ. Code, §§ 1699-1701, providing that an agent, unless specially forbidden by his principal to do so, can delegate his powers to another person when the act is purely mechanical, or is such that the agent himself cannot perform it, or when it is in accordance with the usage of the place, or when such delegation is specially authorized; and if the agent employs a subagent without authority he makes such subagent his agent; but a subagent lawfully appointed represents the principal in the same manner with the original agent.</p> <p>Where a regular customer of and depositor in a bank who had an understanding with the bank by which he was to deposit out of town checks and receive credit therefor, but was to be charged with checks which were not paid, deposited a check in the bank which was payable in a distant city, the bank will not be liable for the loss of the proceeds which one of the agents through which the bank endeavored to collect the check, failed to transmit, in the absence ■of fraud or negligence on the part of the bank, as the depositor, by implication, authorized the collection of the check through subagents and the transmission of the proceeds back to the.bank through the customary course of banking business, although when paper is delivered to a bank for personal collection, or is made payable at the same bank or in the same yicinity, or when the bank sent the paper to the bank against which it is drawn, the bank will be liable for the proceeds.</p>

<p>Appeal from Circuit Court, Potter County. Hon. Loring E. Garry, Judge.</p> <p>Action by Mary Comeau against Solon P. Hurley and an other. From a judgment .for plaintiff, defendants appeal.</p>

<p>In the absence of fraud or mistake, a contract of sale, stating that the vendee’s land is a part of the consideration, cannot be varied by parol evidence that the land was commission paid by him to his agents for procuring the contract.</p> <p>One cannot complain of errors which he has invited.</p> <p>A suit for damages is the purchaser’s only remedy when the vendor conveys to another.</p> <p>Before a vendor who has accepted overdue payments on a contract providing that time is the essence thereof can terminate it and claim a forfeiture for a subsequent default, he must give notice of his election so to do and give the vendee a reasonable time to pay.</p>

<p>An attorney received a note for collection from a nonresident client, brought suit on it, and agreed with -defendant not to take judgment without notice, but subsequently took judgment when he had substantially collected the note. At the attorney’s suggestion, his client assigned the judgment for about one-fourth of its amount to the attorney’s sister-in-law, the client being ignorant of the payments and the relations -of the assignee to him, and the attorney subsequently caused land to be sold in satisfaction of the judgment. Held, that under Pol. Cole, § 698, providing that an attorney who is guilty of deceit or collusion, with intent to deceive a party to an action or proceedings, is liable to be disbarred, the -conduct' of the attorney was ground for disbarment.</p> <p>The relation of attorney and client is one of the highest trust and confidence, requiring the attorney to observe the utmost good faith toward his client, and not to allow his private interests to conflict with those of his client.</p> <p>It is no defense to a proceeding for disbarment for violation of the attorney’s duty to his client that the client has made no complaint, and may not have been injured, as under Bol. Code, § 685, the Supreme Court .has the sole power to admit to practice, and under section 693 disbarment proceedings may be commenced by direction of the court, or that, the transaction having extended over a long period of time, the attorney may have forgotten certain payments to him which he did not report to his client, or that ms wrongdoing is barred in six years, or that in all other respects he has been honorable and .acted as attorney with fidelity to court and client.</p>

<p>In an action against a sheriff and his deputy to recover the value of live stock seized under an execution against plaintiff’s father, evidence held sufficient to justify a verdict finding plaintiff was the owner thereof.</p> <p>Where the evidence is conflicting, the Supreme Court will not weigh it, or go farther than to determine therefrom whether the winning party gave sufficient .legal evidence to sustain the verdict, disregarding the evidence for the losing party, except as it also tends to sustain the verdict.</p> <p>In an action against a sheriff for the value of plaintiff’s live stock seized under an execution against his father, in which it appeared that the father had executed a bill of' sale to another son for certain live stock only a few days prior to the seizure in question, the court properly excluded a question to plaintiff as to why there was put into such bill of sale a clause that all the property was to remain in the possession of the father and brother with the right to take absolute possession at any time, as plaintiff was not a party to such transaction, and not having been shown to have any knowledge of the bill of sale or its contents.</p> <p>In an action for the value of live stock seized under an execution against plaintiff’s father, wherein it was claimed by plaintiff that the stock levied on was his share of stock purchased by his father for plaintiff and his brothers, who with their mother managed the homestead without the assistance of their father, who had turned over the business of carrying on the farm to them, giving them all the proceeds, one of plaintiff’s brothers was permitted to answer a question as to what was the agreement between them as to the amount to be paid by each of them on the balance of the mortgage given by the father on the stock. Held proper, witness having testified that there was a division of the stock between the brothers and mother, and that there was a balance unpaid on the purchase price thereof; and hence it was competent to show that, when the stock was divided, provision was made for the balance due on the purchase of the same, as it was ’ a part of the transaction which plaintiff claimed resulted in his becoming sole owner of the stock in controversy, and bore directly on the question of good faith, and was admissible as part of the res gestae.</p> <p>Evidence that personal property was assessed to an alleged seller, and not to the alleged buyer’ for many years after the sale, is inadmissible to show fraud.</p> <p>A party cannot complain of the court’s refusal to permit a witness to answer a question, where it appears that the witness otherwise fully testified as' to the matter inquired about.</p> <p>Where a witness is unable to state whether a mortgage included personal property, title to which was in dispute, there was no error in sustaining an objection to a question as to how' much the mortgage was for.</p> <p>An exception “to each and every part of the charge” is insufficient to present any question for review.</p> <p>In an action against a sheriff for the value of plaintiff’s live stock seized under execution against his father, a requested instruction that if the jury found that the bill of sale of property including that in controversy was made by plaintiff’s father, and by him delivered to another son without consideration, such .transfer could not avail plaintiff, and the verdict must be for defendants, was properly refused, as plaintiff did not claim title under such bill, and defendants acquired no title or right to levy on the property by reason thereof; the theory of the case being based on the assumption that it was null and void.</p> <p>There is no error in the refusal of special instructions,' where the instructions ’given fairly and fully instructed the jury on all questions properly arising in 'the case.</p> <p>The right to recover for property seized on execution against plaintiff's father was not affected by the fact that his brother made a claim to the sheriff for property which included that in question, where there is nothing to show that plaintiff knew of or acquiesced in such claim.</p>

<p>Appeal from -Circuit Court, Lawrence County. Hon. W. G. Rice, Judge.</p> <p>Action by Eli Milison against -the Mutual Cash Guaranty-Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>.Appeal from Circuit .Court, Douglas County. ITon. E. G. Smith, Judge.</p> <p>Suit by C. W. Farr against Karolina Semmler and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Apylication for mandamus by the Town of Vilas against the Circuit Court of the Ninth Judicial Circuit in and for Miner County and others.</p>

<p>The power of the Supreme Court to admit and disbar attorneys is not an arbitrary and despotic 'one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion.</p> <p>Criticism of judicial officers, made after the termination of the cause, is not ground for disbarment of an attorney, nor for punishment for contempt.</p> <p>Liberty of speech and of the press does not'warrant an attorney of more than 20 years’ standing, either before or .after disbarment, to prosecute a campaign of vilification of the courts or judges of the state, exceeding respectful, fair and candid criticism, and descending to mere scandalous abuse.</p> <p>A matter is deemed to be pending until it reaches a final determination in the appellate court.</p> <p>Liberty of the press does not authorize a newspaper to assail litigants during the progress of a trial, intimidate witnesses, dictate verdicts or judgments, or spread before juries its opinion of 1 he merits of cases which are on trial.</p> <p>Petitioner, an attorney of 20 years’ standing, contracted with his client of an hour’s acquaintance, whereby he was to receive $10,000, whiffi was all the client’s assets, for défending her against the charge of murder, and thereafter openly asserted that she was guilty of murder. An action was then instituted against him to recover the client’s property, and, on his being defeated therein, he entered into a systematic course of vilification of the courts, and all who did not. agree with him, through a newspaper,' and, being later retained to prosecute another for murder, asserted through numerous published articles that proceedings then pending against him for disbarment were instituted to prevent his success in that prosecution, charging impropriety, and corruption against the judges'of the Supreme Court. In proceedings subsequently instituted, after his disbarment, for his readmission to the bar, he still insisted that he had neither said nor published anything intended to discredit or disgrace the court, and that he was aware that it was the duty of every man to preach and practice respect to the court and obedience to its orders and decrees, but that he had simply attacked individuals as such. Held, that petitioner was not shown to be a person of good moral character, required by Pol. Code, § 6 8'6, as a condition precedent to admission to the bar.</p>

<p>The court on appeal from a judgment rendered on a general verdict for defendant must assume, in order to determine the admissibility of evidence received over -plaintiff’s objection, that the witnesses testified truthfully, and that the conflict in -the evidence was resolved in favor of defendant.</p> <p>An objection by -a party to evidence of a conversation with his agent ' on the ground that -the same was not binding on him was sufficient to raise -the question of the admissibility of the conversation.</p> <p>The admission of an agent to bind the principal must be made at the time of doing the act ho is authorized to do, and must concern the act either while actually engaged in -the transaction or so soon thereafter as to constitute a part of the res gestae, which term has reference to and applies to a condition of affairs, a condition of fact rather than a rule of evidence.</p> <p>The statement by the agent of an owner of cattle killed by a train made after the accident and after the .train had come to a stop, in response to a question as to why he .left the cattle on the -track, put'by the conductor who had not .seen -the agent until after the accident, was not -a part of the act of the agent in protecting the cattle from the tra„in, and was not a spontaneous declaration, and .was not admissible as a part of the res gestae.</p>

<p>Wbeve there is no evidence on which to base some of the findings in favor of plaintiff in >an action for divorce, the decree will be reversed.</p>

<p>In an action for bréach of warranty in the sale of a traction engine, consisting in alleged defective flues, plaintiff’s measure of damages was the difference between the value of the machine as it was when delivered and its value had it been as warranted.</p> <p>Where plaintiff used a traction engine a whole season with good results, and then replaced the flues, which he claimed were originally defective, he could not recover the whole cost of replacing the flues in an action for breach of warranty.</p> <p>Where plaintiff purchased a traction engine of defendant under a warranty that it would burn either straw or coal, and a coal burner was of less value than a straw burner, his measure of damages, on it being found that the engine would not burn straw, was the difference in the market value between the coal and straw burner at the time the engine was deliverd.</p> <p>In an action for breach of warranty in the sale of a traction engine, in that it was a coal and not a straw burner, plaintiff having accepted and used the engine satisfactorily, evidence as to the difference of the expense to plaintiff of operating a coal and a straw burner was inadmissible, since the measure of damages was the difference between the market value of the two classes of burners, and the evidence was not directed to the establishment of such value.</p>

<p>Evidence held insufficient to sustain a verdict finding that defendant’s alleged negligence proximately caused the killing of plaintiff’s horses.</p>

Hon. George H. Marquis, Judge. Action by Kate F. Snee against the Clear Lake Telephone Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Where the testimony on the part of the plaintiff disclóses contributory negligence as a matter of law defendant is relieved from the burden of showing such negligence and plaintiff cannot recover. Smith v. C., M. & St. P. Ry. C., 4 S. D. 7; Hoyt v. City .of Hudson, 41 Wis. 105, 29 Cyc. 630.

<p>Appeal from Circuit Court, Minnehaha Count}’. Hon. Joseph W. Jones, Judge.</p> <p>Action by George A. Stegner against the Modern Brotherhood of America, a corporation. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Minnehaha County Court. Hon. D. R. Bailey, Judge.</p> <p>Action by the A. A. Cooper Wagon & Buggy Company against the Stedronsky Bros. Company. From a judgment for defendant on a directed verdict, plaintiff appeals.</p>

Hon. J. H. McCoy, Judge. Action by Charles R. Hyde against the Minnesota, Dakota & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Brown County. Hon. J. H. McCoy, Judge.</p> <p>Action by Jessie E. 'Minard against Elmer Gardner and the Equitable Fidelity & Title Guaranty Company. Judgment for plaintiff and defendant Guaranty Company appeals.</p>

Hon. Frank B. Smith, Judge. Consolidated actions by S. J. Johnson against Carl Knappe and against Gottlieb Metzger and another. From decrees for defendants and orders denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Jeratj-ld County. Hon. Frank B. Smith, Judge.</p> <p>Action- by F. M. Steere -against J. C. Gingery. ■ Judgment fo-r plaintiff. Defendant -appeal's.</p>

Hon. J. H. McCoy, Judge. Action by the George C. Bagley Elevator Company against R. R. Butler, Treasurer of Day County. From a judgment for defendant, and from an order denying a new trial, plaintiff appeal's.

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Action by the Empire Elevator Company against L- L-Butler, Treasurer of Day County. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.</p>

Hon. Joseph W. Jones, Judge. Action by Elizabeth B. Reeves against Harry L. Reeves. Decree for complainant and from an order denying defendant’s motion to vacate the isame, he appeals. '

<p>Since, under Supreme Court rule 2, parties are entitled to a notice of decisions when rendered, where no notice of the decision on rehearing was received by appellants’ counsel before the cause was remanded, and the appellants were thereby «deprived of opportunity to have the costs and disbursements taxed before the original record was returned to the circuit court, such record will be recalled for the purpose of having the costs and disbursements taxed in the Supreme Court.</p>

Hon. Joseph W. Jones, Judge. Action 'to recover possession- of personal property by the People’s Security Bank of Worthing against Human Sanderson. From a justice’s judgment in favor of defendant, affirmed on appeal to- the circuit court, plaintiff appeals. Justice Code, Sec. i, Art. i, Sub. Div. 5. To an action to recover the possession of personal property when the value of such property does exceed the value of one hundred dollars: The value of the property is the test.

<p>An assignment that the court erred in making the amended judgment appealed from is wholly insufficient to direct the Supreme Court to the particular error complained of.</p> <p>Counsel cannot even by stipulation give to the Supreme Court jurisdiction to pass upon .a question not raised by proper exception below.</p> <p>There is nothing to show whether an exception went to the insufficiency of the contents of a certain exhibit or to its competency, where the record only states that appellant excepted.</p> <p>An exception without a previous objection is a nullity.</p> <p>Records, minutes, or memoranda even of the court are competent evidence upon a motion to amend a judgment.</p>

Hon. Joseph W. Jones, Judge. Action by A. H. Stephenson, administrator of the estate of Lewis O. Grinne, deceased, against James W. Cone and others. Judgment for plaintiff, and defendants appeal. Persons cannot be charged with constructive notice of a judgment unless the same is.correctly indexed. Dewey v. Sugg 13 S. E. 924; Sterling Mfg, Co, v. Earley, 28 N. W. .458; Thompson v. Desney, xo N. W. 315.

<p>A subsequent promise to pay for digging and casing a well was supported by a sufficient consideration, where the well inured directly to promisor’s benefit, and was not intended by promisee to be gratuitously made.</p> <p>An assignment of error on the denial of a directed verdict cannot be considered where the evidence is not in the abstract.</p> <p>Assignments of error, based on evidence, or objections to evidence not shown by the abstract, cannot be considered.</p>

<p>Plaintiff, in an action to quiet title, alleged that he was the owner of the premises, in possession, and that defendant claimed some interest under a pretended mortgage. Defendant set forth a mortgage, and that he had foreclosed the same and held the sheriff’s certificate, and that plaintiff claimed under a tax deed, and set out various claims of irregularity in the tax proceedings. Upon the trial plaintiff was allowed to interpose a reply alleging the regularity of the tax proceedings and possession under such deed, and that it had heen of record more than three years prior to the action, to which defendant excepted. Held, that under the South Dakota practice, allowing the short form of complaint in such an action, such form is ample to authorize plaintiff to introduce his deed-, as well as proof of the period during which the deed has been recorded, and, if defendant affirmatively sets forth the source of plaintiff’s title and attacks the same, plaintiff should he allowed to reply thereto, or introduce proof in rebuttal without a reply, so that in either case the allowance of the reply could work no injury to defendant.</p> <p>A mere exception without a previous objection is a nullity.</p> <p>Sess. Laws 1893, c. 158, § 1, provides that a tax sale shall be made to the person who will bid the full amount of the taxes, etc., staling in his bid the lowest rate of interest at which the bidder will pay the amount due against the land, and that the treasurer shall sell to the person bidding at the lowest rate of interest. Sess. Laws 1897, c. 32, § 1, provides a tax deed form having no recital that tho purchaser bid the full amount of the taxes, etc., and that he stated in his bid the lowest rate of interest at which he would pay the tax, etc. Heidi, that such a recital , was not necessary to the validity of a tax deed.</p> <p>A tax deed being in the form and containing the recitals required by statute, and having been recorded for more than the three years of limitation, a finding relative to notice of taking out a tax deed becomes immaterial.</p>

<p>Code Civ. Proc. § 486, provides that in ah action by or against a personal representative, heir at law, or next of kin neither party shall' testify against the other as to any transaction with decedent. On an issue of delivery of a deed to a decedent, grantor was allowed (0 testify, over objection, that, after executing the deed he had it recorded, it had been returned to him by the register of deeds, and had ever since been in his own possession, and that he had executed it, so .that, if he should die, decedent would be comfortable for life. Held, that the evidence of. grantor related to, a transaction with decedent and should have been excluded, 'especially where decedent and grantor, who were brothers, lived in the same family, and. decedent resided in grantor’s family at his death.</p> <p>Pol. Code, §§ 86 6-87S, inclusive, not requiring the register of deeds to keep a record of the person to whom a deed is returned when recorded, a registry fee book kept by' another register of deeds was inadmissible for that purpose.</p> <p>A fact established by a prior judgment in an action between the same parties, and involving the same question at issue in a subsequent action, is competent as evidence in such subsequent action, and ordinarily constitutes an estoppel of further inquiry.</p> <p>The abstracts of the parties being in conflict, the Supreme Court is required to examine the original bill of exceptions.</p> <p>The record of an action in another state purported to he a certified copy of the petition, answer, replication, and “journal entry.” Attached to the petition was a certificate signed by the clerk of the court stating that he was such clerk, having possession of the records of his office, and that such petition was a true copy of the petition on file. To this was added a certificate that a person named was the judge of the district. Following this was a certificate purporting to be made by the judge, but not signed by him. Practically the same certificates were made by the clerk on the answer, reply, and Journal entry. To the journal entry was added a certificate signed by the judge that he was the judge of the district and that such other person, was the clerk, and that the signature to the certificate of the clerk was 'the signature of such person and entitled to full faith and credit. Held, -that the certificate signed by the judge was not limited to the certificate of the clerk to the journal entry, but applied to the prior certificates of the clerk upon the petition, answer and reply.</p> <p>The omission of the words “that the attestation is in due form,” required by Code Civ. Proc. § 529, from the certificate of the judge fo the record of a foreign judgment, was supplied by the statement that the certificate of the clerk was “entitled to full faith and credit,” and the record was not thereby rendered inadmissible.</p> <p>The record of a foreign judgment showed, following the pleadings, what was denominated a “journal entry,” the recitals of which were that the cause came on for hearing, evidence introduced, and arguments made, whereupon the court took the same under advisement and rendered judgment, following which were certain facts found and the adjudication of the court. On the back of the journal entry were the filing indorsements of the clerk and place of record. Held, that, while the findings and judgment were not as formal as they are required to be in South Dakota, yet they were sufficiently formal to be valid.</p> <p>The presumption that a person shown to be insane continued so is rebuttable.</p>

Hon. George H. Marquis, Judge. Action by Samuel Cunningham against the Royal Neighbors of America. From, a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>The presumption is, with no showing to the contrary, that the grantee’s name left blank in a deed when executed, but thereafter inserted, was filled in by that person authorized in writing to do so’.</p> <p>Notwithstanding authority to insert the grantee’s name in a deed left blank when executed must be in writing, yet grantors accepting the consideration therefor are estopped to question the validity of the deed as against grantee.</p>

'pueril from Circuit Court, Snink County. lion. Cttas. S. Wiuti.v;, Judge. Action hv the Riggs Land Company- against II. II. Motley and another. From a judgment for Motley, and an order denying a new trial, plaintiff appeals.

<p>A demurrer to an answer must be overruled if it states a good defense either complete or partial.</p> <p>The private business affairs of a citizen, occupying no public position and not a candidate for public office, are not a matter in which the public has any special interest within the rule of privileged communications.</p> <p>Though a newspaper publisher may print an impartial report of judicial proceedings in court, mere private investigations by officers or public authorities confers no more right upon him than upon a private individual.</p> <p>Newspapers have no greater privilege to comment upon the conduct of a private citizen than has a private individual.</p> <p>An answer in libel alleging that the publication was without malice, and not made with intent to injure plaintiff, but to discharge what defendant newspaper publisher believed to be his duty to the public, and that an investigation -was had in which witnesses were examined, and that defendant prior to the publication had heard and read the evidence of one of them, and that therefrom, with other knowledge ho, possessed, he was led to publish the article, states facts sufficient to show mitigating circumstances that might prevent exemplary damages.</p> <p>A demurrer including not only the failure of an answer in'libel lo state Ruffic.ic.nl facts to show justification or a privileged communication, but, also mitigating circumstances tending to prevent exemplary damages, must be overruled if facts showing mitigating circumstances are alleged, irrespective of whether either justification or a privileged communication is shown.</p>

Hon.. Uranic B. Smith, Judge. Action by Charles E- Gibson against C. J. Smith and another, There was a default judgment for plaintiff which was thereafter vacated, and from .a subsequent judgment for defendant Smith and an order denying a new trial, plaintiff appeals

' Appeal from Circuit Court, Davison County. FTon. Frank B. Smith, Judge. Fred West was convicted of the rape of a female under 18 years, and he appeals from the judgment of conviction and an order denying a new trial.

Hon. Frank B. Smith, Judge. Action by Charles E. Gibson against F. F. Kitterman and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeal's.

<p>On petition for rehearing.</p>

Hon. J. H. McCoy, Judge. .Action by the Minder & Jorgenson Land Company against Ole P. Brustuen. From a judgment for defendant and an order denying a new trial, plaintiff appeals.

Joseph AY. Jones, Judge. Action by O. IT. Koester against the Northwestern Port Huron Company. Prom a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Lyman T. BouciniR, Judge. Action by Seymour 1). Blair and another against Sarah .-V. Mayer, executrix of L- J. Mayer, deceased, and others. From a judgment for plaintiffs and an order denying a new trial, defendant executrix appeals.

Hon. Frank B. Smith, Judge. Clarence Colvin was convicted of grand larceny, and from the judgment of conviction and order denying a new trial, he appeals.

Hon. Joseph W. Jones, Judge. Action by Robert Connell against the City of Canton. From a judgment for plaintiff and an order denying a new triál, defendant appeals.

<p>Appeal from Circuit Court, Fall River County. Hon. Levi McGee, Judge.</p> <p>Action by Myron W. Tilden against C. H. Smith. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p>

Hon. Eyman T. Bouci-ier, Judge. Action by D. R. Jones against George Woodworth. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

- Hon. George H. Marquis, Judge. A1 Johnson was convicted of keeping and maintaining gambling apparatus, and he appeals from the judgment of conviction and an order denying a new trial.

Hon. George H. Marquis, Judge. • Action by James W. S. Peters against Mary V. Rohr and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

<p>A live stock carrier must furnish a car reasonably safe and suitable, in view of the kind, character, and nature of the stock to be transported.</p> <p>A carrier cannot relieve itself of its failure to provide a suitable car by a stipulation in the bill of lading devolving upon the shipper the duty of selecting a suitable car.</p> <p>A request to charge that, if injury to horses was as likely to have been caused by their natural propensity to kick and fight as by negligence of the carrier, the shipper was not entitled to recover was properly refused, where under the evidence the shipper might have recovered even if the jury found fo,r the carrier on such proposition, as it was not restricted to damages resulting only from kicking and biting.</p> <p>Where the value agreed upon for horses shipped was so out of harmony with their actual value as to indicate that the question of value did not in fact enter into the agreement, and the carrier, under the circumstances, must have known of the discrepancy, such value will be considered as a mere attempt 'by the carrier to secure partial exemption from liability, and of no effect in relieving it from the obligation of responding for the real value of the horses.</p> <p>Appeal from Circuit Court, Davison County. Hon. Frank B. Smith, Judge.</p> <p>Action by A. C. Berry and another against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiffs, and an other denying a new trial, defendant appeals.</p>

ITon. Frank B. Smith, Judge. Isaac Allison' was convicted of an assault with intent to commit rape upon the person of a female under the age of i'8 years, and from the judgment of conviction and an order denying a new trial, he appeals.

<p>To determine on which, side of the court — the jury or law side, or the court or equity side — an action is, reference must be had to the common law; the right of trial by jury as it existed at common law alone being preserved by the federal and state Constitutions.</p> <p>A complaint -to determine adverse claims and quiet title, and demanding that defendant be required to set forth the nature of his claim, and that all adverse claims of defendant be determined by .a decree, and that it be decreed that he had no estate, and that the title of plaintiff was good, and that defendant be enjoined from asserting any claim, and plaintiff have such other relief as was equitable, is wholly on the equity side of the court, so that a jury trial is not deman dable as of right.</p> <p>Allegations of the reply beyond what are requisite to reply to the counterclaim are unauthorized, and constitute' a departure, and cannot aid or strengthen the complaint where alleging a new or different cause of action.</p> <p>The fact that there was an understanding between grantor and grantee that grantor should sell and manage the property after the conveyance the same as he had before, and that at the time he was indebted to the extent of several hundred thousand dollars, had the effect to show that a secret trust existed between them, which necssarily had the effect of hindering and delaying creditors of grantor and this whether the conveyance was an absolute deed or a mortgage.</p> <p>It does not lie in the power of the grantor, or one claiming under him by quitclaim, to say that a deed found by the court to be in fraud of creditors had any other or different effect than appears from its plain report.</p> <p>The fact that grantor himself, after he had conveyed to a bank, executed, as president of the bank, an assignment of its property for the benefit of its creditors, and then stood by and saw the assignee asserting ownership over the land, and finally sell it to another for its approximate value, without himself ever making' any claim thereto, or in any manner objecting, fully sustains a finding that he was guilty of laches, and that he and his grantee should be estopped to assert any title.</p>

Hon. Arva ,E. Tayror, Judge. Bastardy proceedings by the State against Frank E. Liter. From a judgment for the state, and an order denying a new trial, defendant appeals.

. Hon. E. G. Smith, Judge. John Ham was convicted of grand larceny, and, from the judgment of conviction and an order denying a new trial, he appeals.

<p>A description of premises intended to be conveyed as all ranches, lauds, houses, barns, stables, and corrals belonging to F. Bros. Cattle Company, situated on the Belle Fourche river, Butte county, D. T., *nd commonly known as the headquarters of the F. Bros. Cattle Company, was sufficiently certain.</p> <p>The office of a description in a deed is not to identify the premises, but furnish the means of identification and under Civ. Code, § 2437, providing that that is certain which can be made certain, a description is sufficient if a person of ordinary prudence, acting in good faith and making inquiries suggested by the description, would be enabled to identify the property.</p> <p>Civ. Code, § 12 50, provides that the whole of a contract is to be taken together, so as to give effect to’ every part. An instrument granted and conveyed to second party premises described and contained covenants equivalent to a warranty deed, but also contained a further provision that first party agreed to convey to second party all lands, which were the same as the premises described, pre-empted by first party and patent applied * for as soon as such patent was received by him from the. government. Held, that the instrument was not merely an executory contract to convey such lands in the future, but was an absolute and completely executed transaction.</p> <p>Stat. U. S. § 2262, making any contract, before final proof, for the disposition of public land settled on under the pre-emption act, void, prohibited a pre-emption settler from transferring, before final proof, to a firm of which he was a member, title to such land.</p> <p>A conveyance of a homestead, void because the wife did not join, was nevertheless color of title within Code Civ. Proc. § 54, providing that every person in the actual possession of lands under color of title for 10 years, having paid the taxes thereon, shall be held the legal owner to the extent of his paper title.</p> <p>An heir stands in privity with the ancestor, and is estopped by the same facts -that would estop -the ancestor.</p> <p>A husband who accepted the full benefit of the value of his homestead in the settleinent of a copartnership transaction surrendered possession to his' grantee, and established another homestead, and gave effect to the validity of the transaction of which such conveyance was only a part, and did not thereafter claim any interest therein or pay any taxes thereon, is estopped to thereafter claim that he is the owner as against such conveyance, notwithstanding its invalidity because his wife did not join -therein.</p>