Volume 24 — Wyoming Reports

Y. J. Tidiiall, Judge. Charles Ivey was prosecuted upon a charge of assault and 'battery with intent to commit murder in the second degree and convicted of assault and battery with intent to commit manslaughter and he brings error. The material facts are stated in the opinion. The juror M. A. Skinner in his voir dire stated falsely that he had not expressed an opinion. It was discovered after verdict that he had expressed bias and prejudice against defendant.

<p>Appear and Error — Extension op Time for Appear — Petition in Error — Jurisdiction—Time Limit for Appear — Dismissar.</p> <p>1. An extension of time for instituting proceedings in error granted by the trial court on the application of plaintiff in error made after the expiration of one year from the rendition of judgment did'not revive the right of appeal which had .been lost by failure to apply for an extension of time before the. expiration of one year after final judgment, as required by Section 5122, Comp. Stats. 1910.</p> <p>2. Proceedings in error commenced within an extension period granted and fixed by the trial court at a time more than one year after rendition of judgment will be dismissed by the appellate court for want of jurisdiction.</p>

William C. MentzRr, Judge. Actions by Rachael E. Gray against the Stockgrowers’ Bank of Wheatland. Proceedings in error to review a judgment for plaintiff and to review a denial of its petition after term to set aside the judgment and verdict and for new trial. The cases are considered and determined in the opinion in the order of their docketing number. The material facts are set forth in the opinion.

Carroll H. Parmelee, Judge. Action by S. P. Cadle against Maggie Black to recover for services. From a judgment for defendant, plaintiff brings error. The facts are stated in the opinion. Instruction No. 3, given over the objection of plaintiff, was erroneous, as the circumstances shown by the evidence implied a promise to pay for the services. In instructing the jury the court should avoid the use of technical terms.

Charles E. Winter, Judge. Action by Howard G. Peters against W. L. Killibrew and another. Judgment for defendant and plaintiff ’brings error. The facts are stated in the opinion.

William C. Mentzer, Judge. Action by Walker Lumber Co. to recover from Royal Insurance Company on a contract of fire insurance. On a' former hearing reported at 23 Wyo. 264, 148 Pac. 340, the judgment was affirmed on the ground that the bill of exceptions failed to show that it contained all the evidence necessary to a determination of the errors assigned. Plaintiff in error petitioned for a rehearing and made application to withdraw the bill for amendment.

Carroll H. ParmEleE, Judge. Willard Flanders was convicted of murder in the first degree and he brings error. The material facts are stated in the opinion. The court erred in excluding evidence offered by defendant for the impeachment of the witness, Bothwell, and evidence of declarations made by deceased to said witness with reference to the mental condition of defendant, said declarations having been made on the day of the homicide and (being a part of the res gestae.

<p>Error to the District Court, Hot Springs County; HoN. Carroll H. Parmelee, Judge.</p> <p>On motion to dismiss proceedings in error.</p>

<p>Error to the District Court, Hot Springs County; HoN. Carroll H. P armóles, Judge.</p> <p>On motion to dismiss proceedings in error.</p>

C. Raymond, Judge. Action by Angus J. McDonald against John M. Baldwin and Virena Baldwin to foreclose as a mortgage a deed absolute on its face and a contract 'between the parties for a reconveyance upon payment of a loan made at the time. From a judgment for plaintiff, defendants bring error. Other material facts are stated in the opinion.

Charles E. Winter, Judge. Proceedings had upon objections filed with the confirmation of the report of commissioners made in connection with the organization of the Bench Canal District following an order confirming the report, Iowa M. Mullen and other remon-strators bring error. The nature of the proceedings and other material facts are set forth in the opinion. Chapter 95, Daws 1911, is unconstitutional.

William C. MentzEr, Judge. Hearing had upon objections filed by Ord Preston, guardian, to an investment of trust funds by the International Trust Company, as trustee. From an order surcharging the trustee with the amount of said investment it brings error. The material facts are stated in the opinion. The context of Paragraph Fifth of the will establishes the intention of the testatrix to authorize the trustee to exercise a discretion in the selection of investments.

V. J. Tidball, Judge. Action by Tames P. Van Buskirk against the Red Buttes Land and Live Stock Company. Judgment for defendant and plaintiff brings error. The facts are stated in the opinion. - The rights of the parties have been adjudicated by the Board of Control, a fact admitted by the pleadings.

Wm. C. Mentzer. Judge. Habeas corpus by James Harris and another against Matt Muir and wife. From an order denying the right plaintiff brings error. The facts are stated in the opinion. Upon the death of plaintiff's wife he placed his minor children with defendants temporarily and arranged to pay them $20.00 per month for caring for the children until such time as he might make a home himself for them; said payments -have been made by plaintiff to defendants.

<p>Review — Clerical Error — PIarmlEss Error.</p> <p>1. Where the court in quoting from the record referred to “Simpson Hill” instead of “Mason Hill,” which was intended, it clearly appearing from the record that Simpson Hill is not mentioned therein, the error was merely clerical and harmless.</p>

Charles E. Winter, Judge. Wilmer P. Palmer was convicted of murder in the first degree and brings error. _ In the absence of a bill of exceptions the cause was considered and determined upon the record proper. Defendant in error moves to submit the cause under Rule 21, providing that ‘When the plaintiff in error has failed to file and serve his brief, as required by the rule, defendant in error may have the cause dismissed with or without or.al argument.

William C. MentzBr, Judge. Action by the Studebaker Corporation of America against Alpheus P. Hanson. From a judgment for defendant on a counter-claim plaintiff brings error. The facts are stated in the opinion.

J. Tidball, Judge. Action by Oscar Natwick, trustee in bankruptcy, against Charles D. Terwilliger. From a judgment for defendant, plaintiff brings error. The facts are stated in the opinion. Stockholders are liable for unpaid subscriptions. (Section 3988, Comp. Stats. 1910.) Insolvency of a corporation does not release from such liability. (Section 4, Bankruptcy Act.) Corporate creditors are represented by the trustee in bankruptcy after incolvency with authority to sue.

Charles E. Winter, Judge. Will contest by Anna Cook Bolduc and another against Nina May Cook. Judgment for contestants, refusing to admit the will to probate and contestee brings error. The facts are stated in the opinion. The court erred in denying contestee’s motion to strike portions of the petition. (40 Cyc. 1156; Eulton v. Free-land, 219 Mo. 494, 118 S. W. 12, 131 Am.

Original application by the City of Sheridan for a writ of certiorari to review the action of the District Court in and for Sheridan county in a cause determined by such court on appeal from the municipal court of the City of Sheridan, wherein S. P. Cadle, who had been prosecuted in the municipal court for disorderly conduct in violation of a city ordinance, found guilty, and sentenced to pay a fine, was in the .District Court on appeal adjudged not guilty and discharged.

Carroll H. Parmelee, Judge. Action by William C. Hennessy against the Chicago, Burlington & Quincy Railway Company and another to recover damages for personal injuries. Judgment for defendants on the pleadings dismissing the action and plaintiff brings error. The facts are stated in the opinion. The judgment sustaining the demurrer in the federal court was not a decision upon the merits.

C. H. Parmelse, Judge. Action by W. H. Cash against the Chicago, Burlington and Quincy Railroad Co. to recover damages for cattle injured upon defendant’s right of way. The facts are stated in the opinion. A railroad company is not required to construct a right of way fence within the boundaries of an incorporated town (Comp. Stats. 1910, Section 2593); and there is no liability for stock killed or injured on public road crossings unless negligence can be shown. (Comp.

Carroll H. Parmelee, Judge- Action by John M. Thorn against William H. Lyman for the recovery of fees claimed by plaintiff to have been earned by him as sheriff in connection with the sale of property on execution. The facts are set forth in the opinion. The plaintiff is not entitled to the fees provided by Section 1214 of the Comp.

Craig, Judge. Action by Joseph Duncombe against C. L. Rollins, Sr., and another, for the recovery of money paid in purchase of certain sheep from defendant, the title of which were in another. Other material facts are stated in the opinion. The evidence offered as to the identity of the sheep was incompetent and should have been precluded.

Mrntzrr, Judge. Thomas G. Nicholson was convicted of the crime of libel, and he brings error. The information is insufficient as the publication did not support the innuendos. Nothing may be a'dded to the publication by innuendo to make the article libelous. (In re McDonald, 4 Wyo. 150; Rocky Mt. News Printing Co. v. Fridden, 104 Pac. 956, 24 E. R. A. (N. S.) 891.) The article charged confiscation of a liquor license by a public official.

Craig, Judge. Actions by the Saratoga State Bank, a corporation, against A. D. Campbell and Ralph A. Campbell. Judgments for plaintiff and defendant brings error. The error proceedings were consolidated and upon consideration were dismissed on the ground that no questions are presented by the record for decision on appeal.

William C. Mentzer, Judge. Mandamus proceedings by the State on relation of School District No. 2, in the County of Laramie, against the Board of County Commissioners of the County of Laramie and others to compel a sufficient general school tax levy for the year 1916 to raise $300.00 for each of the tweny-seven teachers employed by the relator, and engaged in teaching schools in said district for six months or more during the preceding school year ending April 30th, 1916.

ParmeleE, Judge. Action by Frank'A. Eeitner and others, co-partners doing business under the name and style of Eeitner Bros., against William Thayer and another to recover upon notes given in the purchase of a stallion. Judgment for defendants and plaintiffs bring error. The facts are stated in the opinion.

Charles E. Winter, Judge. Action by Patrick Kelly against the Board of the County Commissioners of Big Horn County, Wyoming, for damages in the establishment of a public road, judgment for defendant and plaintiff brings error. Plaintiff was deprived of his property without due process of law. ('Const., Art. I, Sec. 6.) Plaintiff’s property was taken for public road purposes without compensation and he is entitled to damages at least in the amount agreed upon.

Charles E. Winter, Judge. Action by Frank E. Martin against the Big Horn Power Company. Judgment for plaintiff and defendant brings error. The facts are stated in the opinion.

Charles E. Winter, Judge. Action by Elroy 'C. Hartley against the Bishop Randall-Hospital, for damages for personal injuries caused by the alleged neglect of a nurse. From a judgment for plaintiff defendant brings error. The facts are stated in the opinion. Plaintiff in error is a charitable institution. The fact that patients who are able to pay are charged for care cannot affect its character as a charitable institution.

John R. Arnold, Judge. Action by A. C. Stephenson against Amelia Lichtenstein and others, for the enforcement of a judgment lien. From a judgment sustaining a demurrer to the petition and dismissing the action, on plaintiff’s election to stand on the petition, plaintiff brings error. The facts are stated in the opinion. The statute forbids the issuance of an execution upon a money judgment after the death of the judgment debtor. (Section 5629, Comp.

V. J. Tidball, Judge. Action by the Capitol Hill State Bank against the Raw-lins National Bank of Rawlins to recover upon a certificate of deposit issued to another. Judgment for defendant and plaintiff brings error. The facts are stated in the opinion. The plaintiff proved that the certificate was negotiated to-wit: before maturity for its face value less a bank discount and that the certificate was protested for non-payment; the plaintiff made out a prima facie case.

Charles E. Winter, Judge. Dewey Mortimore was convicted of manslaughter and brings error. The material facts are stated in the opinion. The court erred in excluding evidence of specific acts of violence of deceased, known to defendant, many of which occurred in his presence and some of which were made known to him. This evidence would have given the jury an idea as to the degree of apprehension of defendant at the time he shot.

David H. Craig, Judge. Daniel Parker was convicted of murder in the first degree and brings error. The material facts are stated in the opinion.

David H. Craig, Judge. Matt Cirej was convicted of murder in the first degree and brings error. The material facts are stated in the opinion.

David H. Craig, Judge. T. Ohama was convicted of murder in the first degree and brings error. The material facts are stated in the opinion. It is true that no exceptions were taken by counsel for defendant at the trial and it would appear from the rules that have been observed in this and other appellate courts, that there is nothing before the court for review.

Huard on questions of.law reserved and certified from the District Court of Caramie County arising on demurrer filed to an information charging William I. LeBarron with a violation of Chapter 45 of the Daws of 1915, limiting hours of labor for female employees; Hon Wm. C. MsnTzijr, Judge. The provisions of Section 1 of Chapter 45, Daws 1915, are not unconstitutional.

William C. MentzEr, Judge. Action by E. B. Welty against E. A. Haney. Judgment for plaintiff and defendant brings error. The judgment rendered :by the justice more than 24 hours after the close of the trial is void. (Section 5250, Comp. Stats. 1910.) The section is mandatory. (Watson v. Davis, 19 Wend. (N. Y.) 371; Stevens v. Santee, 49 N. Y. 35; Catlin v. Rundell, 1 App.

William C. Msntzér, Judge. Action by Warren C. Fisher against John C. Nash for slander. There was a judgment for plaintiff, and defendant brings error. Considered and decided on questions relating to the sufficiency of the pleadings.

Charles E. Winter, Judge. Action by Independent Order of Odd Fellows of Casper, Wyoming, Lodge.No. 22, against John T. Scott,.Treasurer and Collector of Taxes, to enjoin collection of taxes assessed and levied upon its property. From a judgment denying injunction and awarding defendant costs, plaintiff brings error. The material facts are stated in the opinion. No briefs having been filed, the cause was submitted under Rule 21, upon motion of defendant in error.