Volume 25 — South Dakota Reports

<p>Appeal from Municipal Court of Watertown. Hon. Irvin H. Meyers, Judge.</p> <p>Action by Polly E. Sweeney against the United Underwriters’ Company. Erom an order overruling a demurrer to the complaint, defendant appeals.</p>

<p>Under Code Civ. Proc. § 754, authorizing certiorari where inferior boards or tribunals have exceeded their jurisdiction, certiorari is a proper remedy to review the past acts of a city board of commissioners, after the grading of a street has been fully completed, without objection from a property owner, where the resolution authorizing the special assessment expressly advised property owners that street intersections would be .paid for out of the general fund, and it is fair. to infer that such owner had not knowledge that the cost of such intersections was included in the special assessment that would require him to act until the filing and approval of the engineer’s estimate and he then acted promptly.</p> <p>Where a street improvement resolution expressly recited that the cost of street intersections would not' be included in the special assessment, and the cost of intersections was not included in the resolution as a part of the proposed assessment, the inclusion of the cost of such intersection was wholly without the improvement proposed to 'be made, and the city commission and engineer had no jurisdiction to include the cost of such intersections pro rata against abutting property, and their doing so rendered the assessment void.</p> <p>Under the Constitution and statutes a city 'has the power and right, it it so desire, to pay for the improvement of a street at intersections with other streets out of the general fund.</p>

Hon. Joseph W Jones, Judge. Action by James Arthur Pugh against Mary Mantón Pugh. From an order sustaining a demurrer to the complaint and the final judgment entered thereon, plaintiff appeals.

Hon. Frank B. Smith, Judge. Action by William Kline and others against C. E. Gingery. Pending the action defendant died, and Henrietta Mae Gingery, executrix of his will, was substituted. Judgment for plaintiffs, and defendant appeals.

Hon. Lyman T. Boucher, Judge. Action by Flora A. Hobart against N. Scott and another, in which action Charles B. Tifft intervened. From a judgment for intervener, and an order denying a new trial, plaintiff appeals.

Hon. GkorGU H. Marquis, Judge. Action by the City of Watertown against J. H. Troeh. From a judgment for plaintiff and an order denying a new trial, defendant appeals. To constitute a valid and complete- dedication two- things must concur, to- wit.: An intention by the owner clearly indicated by his words and acts to dedicate the land to a public use and an acceptance by the public of the dedication.

<p>Appeal from Circuit Court, Deuel County. Hon Georgs H. Marquis, Judge. ■</p> <p>Fred J. Walsh was convicted of adultery, and he appeals.</p>

Hon. Joseph iV. Jones, Judge. Consolidated action by the Sioux Palls Pressed Brick Company and others against the Board of Education of Sioux Falls, impleaded. From a judgment for the Board and an order deny mg a new trial, plaintiffs appeal.

<p>The rule that knowledge of the agent is knowledge of the principal does not apply where the agent acts beyond his authority, and the person with whom he is dealing knows he is so acting, and where there is nothing to notify the principal that the agent has attempted to make a new or modified unauthorized agreement.</p>

<p>Original application for a writ of habeas corpus by Grace Nesson against J. G. Miles, sheriff of Brookings county.</p>

Hon. Gkorge; H. Marquis, Judge. Prohibition by the State, on relation of William Walklin, against William Shanks and others, as trustees of the town of Castlewood and E. W. McLaughlin, as clerk of said board. From a judgment for defendants and an order denying a new trial, relator appeals.

<p>Apeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action for injunction by the American Linseed Oil Company against A. H. Wheaton, Eood and Dairy Commissioner. From an order sustaining a demurrer to the complaint, plaintiff appeals.</p> <p>The right of the state to pass al-1 needful law.s, even prohibitive • laws, for the protection of the health of its citizens is settled beyond controversy. This compound is not known or used as an article of food, the label clearly state, “For commercial purposes,” therefore the law in question could not be for the purpose of protecting the health of the citizens of the state. Chesapeake & O. R. Ry. Co. v. State, 105 Va. 297. Police power of a state has been exercised in the passage of lawis which will promote the general welfare and prosperity of the public, but in no instance has it ever passed an arbitrary or prohibitive act in- such caises. Standard Oil Co. v. State of Temí., xoo S. W. 705; N. W. Nahl Life Ins. Co. v. Rigg, 203 U. S. 243; Roswell v. Security Mut. L. In's. Co., 104 N. Y. S. 130. Legislative authority cannot deprive a man of life, liberty or property, except when he is convicted of a crime or the sacrifice of his property is demanded by a just regard for the public welfare. Atchison & N. R. Ct>. v. Bady, 6 Neb. 37, 29 Am. Rep. 356. The Linseed Oil Law of South Dakota, if applicable to the case in part yields no permission to the plaintiff !o sell his compound with linseed oil within the state. It does not presume to regulate as to the sale of linseed oil compound, but to prohibit. It doss not say that linseed oil compounds shall be permitted to be sold in the state, providiixg they are labeled with the ingredients and percentage thereof. It absolutely prohibits their sale. Booth v. People, 186 111 43; People v. Marx, 99 N. Y. 377; Chicago Fete., Ry. Co. v. State, 53 Am. St. 557; State v. Scougal, 51 N. W. 853.</p> <p>The exercise of .the police power over economic interests may be divided as follows: 1. protection against fraud; 2. protection against oppression' and the promotion of economic liberty; 3. public convenience and advantage; 4. compulsory benefits. Freund on Police Power, Sec. 12. For the prevention of fraud and oppression, publicity and notice is as a rule the best and most adequate method of police regulation. A very common form of notice consists in marks, signs, labels or stamps which are required to be affixed to' articles of commerce in order to advise the public of their true nature. The purpose may be either protection ag-ainst danger, or protection against fraud. Freund on Police Power, Sec. 41; State v. Snow, 11 L. R. A. 355; State v. Sherod, 50 L- R. A. 660. The police power extends to prevent imitations, so that the public may not be deceived' into buying an inferior article on account of its similarity in appearance to a genuine article. Freund on Police Power, Secs, 280 and 285. It is applied to weights and measures -so as to prevent deception and fraud. Freund on Police Power, Secs. 272, 273, and 274.</p>

<p>A complaint, alleging that defendant rented of plaintiff a threshing engine, for which he was to pay $10 a day, and that thereafter he used the engine for 18 days, with prayer for judgment, stated a cause of action as against an objection at the trial to the introduction of any evidence thereunder.</p> <p>A verdict upon conflicting evidence is conclusive.</p> <p>A party who does not except to the instructions given, or make any objection to the theory of the charge, cannot thereafter contend, in the absence of any request for instructions, that the case was tried, or should have been tried, upon a different theory.</p>

Hon. W. G. Rick, Judge. Mandamus by the State, on relation of Philip Koontz, against David Brown and others, as Commissioners of Meade County, and Juliet Brown, as Superintendent of Schools of said county. Judgment for defendants, and relator appeals.

<p>Appeal from Circuit Court, Clark County. Hon. George H. Marquis, Judge.</p> <p>Action by the Cottonwood County Bank against Wesley Case and others. From a judgment for insufficient relief and from an order denying a new trial, plaintiff appeals.</p>

<p>Civ. Code, § 986, makes a conveyance ’of real property void as against a subsequent purchaser or incumbrancer, in good faith, for a valuable consideration, whose conveyance is first recorded. Section 987 defines a “conveyance” as any instrument by which an estate in real property is created, etc. Held, that a mortgage, though given to secure an antecedent debt, is supported by a sufficient consideration to constitute mortgagee an incumbrancer for value within the protection of the recording act (sections 986, 987), where a definite extension of the time of payment is granted.</p> <p>A mortgage cannot be.reformed and given priority over another mortgage taken in 'good faith, for value, and without notice, irrespective of the recording act; the power to reform a contract being subject to the limitation that such relief cannot be granted against a bona fide purchaser or incumbrancer.</p>

Hon. J. H. McCoy, Judge. Action by Marie Farmen against the United States Express Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The burden of proof is upon the consignor to' prove the contract and the delivery of goods; then upon the carrier to show their loss and the manner of loss. The burden then shifts to the consignor to establish that the loss was due to negligence.

<p>Appeal from Circuit Court, McCook Count}'. Hon. Joseph W. Jones, Judge.</p> <p>Action by Carl W. Westphal against Peter Nelson. Prom a judgment for defendant and an order denying a new trial, plaintiff appeals.</p>

Hon. Citas. S. Writing, Judge. Proceedings by the State, on relation of the Board of Railroad Commissioners, against -the Duluth, Watertown & Pacific Railway Company and another. Judgment for relator, and defendants appeal.

Frank B. Smith, Judge. Henry Sysinger was convicted of rape in the second- degree, and, from the judgment of conviction and an order denying a new tria-l. he appeal's.

Hon. Lyman T. Bouchur, Judge. Action by the Manganese Steel Safe Company ag'ainst the Hirst State Bank of Leola. Judgment for defendant, and plaintiff appeals. When the vendee is sued for non-performance of the contract on his part, in not paying the contract price, if the goods have been delivered the measure of damages is, the price named in the agreement. Sedgwick on Damages, 312.

Hon. W. G. Riot, Judge. Action -by the Omaha Rubber Shoe Company against the Lead-Teny Mercantile Company. From a judgment for plaintiff and an order dembng a new trial, defendant appeals.

Hon. CborGE PI. Marquis, Judge. Action by Mary Chrystal against' Frank E. Gerlach.

<p>Appeal from Circuit Court, Brown County. Hon. J. H. McCoy, . Judge.</p> <p>Action by the H. C. Behrens Lumber Company and another against Hattie E. Lager and others. Judgment for defendants, and plaintiff's appeal.</p>

Hon. Levi McGee, Judge. Action by Joseph Jay against W. S. Stockwell, W. C. Lusk, A. A. Taylor, and G. D. Loffler. From an order denying their motion to open a default judgment against them, defendants Taylar and Loffler appeal.

Hon. J. H. McCoy, Judge. John H. Guy was convicted of selling and keeping for sale intoxicating liquor without a license, and he appeals.

<p>The amendment of the peddler’s license act (Bess. Laws. 1903, c. 190) hy Sess. Laws 1905, o. 147, inserting in section. 7, after the word “peddler,” the words “or as a transient merchant, trader or dealer within, the meaning of section 1 of this chapter,” did not in any manner affect the constitutionality of the law.</p> <p>The amendment of the peddler’s license act (Sess. Laws 1903, c. 190, § 5) hy Sess. Laws 1907, c. 201, changing the amount .of license to he paid hy the different classes of peddlers, did not in any manner affect the constitutionality of the law.</p> <p>Peddler’s license act (Sess. Laws 1903, c. 190), does not conflict with Const, .art. 11, § 8, forbidding the levy of a tax except in pursuance of a law which shall state the object, on the theory that the burden imposed is an occupation tax; for, assuming it to he so, it is levied “in pursuance of a law” which “states the object” by providing that all sums shall he covered into, the general fund for the use of the county.</p> <p>The imposition of a fine hy peddler’s license act (Sess. Laws 1903, c. 190) for its violation does not contravene Const. Bill of Rights, art. 6, § 15, forbidding imprisonment for a debt arising out of or founded on contract.</p>

<p>Appeal from Circuit Court, Potter County. Hon. Roring E-Garry, Judge.</p> <p>Action by Ellen M. Scanlon against Andrew T. Rock and another. Judgment for plaintiff, .and defendants appeal.</p>

Hon. Joseph W. Jones, Judge. Action by the Great Northern Railway Company against the Loonan Lumber Company. From an order overruling a demurrer to the answer, plaintiff appeals.

<p>An instrument, leasing premises for a stipulated term at an agreed rental, and providing that the title to 'all crops raised should he and remain in the lessor until the rent had heen paid, is not a chattel mortgage nor in the nature thereof, so as to he required to he executed as such.</p> <p>Notwithstanding a lease is void under the statute of frauds, the tenant must pay the rent according to the terms thereof, where he takes possession of the premises and enjoyes the benefits thereof under such lease.</p> <p>A tenant 'or one holding under him with notice is estopped to assert that his landlord has no title.</p> <p>A transfer of the reversion does not carry to grantee the right to rent already accrued and in arrears.</p> <p>A written ratification of a lease executed by an agent without authority in writing not only validates the same from the date of the ratification, but from its inception under the doctrine of relation back.</p> <p>Haney, J., dissenting.</p>

Hon. Gdorg® H. Marquis, Judge. Action by Isabelle P. -Erickson, a minor, by John Erickson, her guardian, against -the Ladies of the Maccabees of the World. Ero-m a judgment for plaintiff and an order -denying a new trial defendant appeals.

Hon Joseph W. Jones, Judge. Action by Anna O. Bailey against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, impleaded with the City of Sioux Falls. Judgment for -plaintiff, and the Railway Company appeals. There is no allegation in the complaint that the injury complained of is a nuisance or that it would become a nuisance. The complaint does not ask to- prevent the creation of a nuisance.

Hon. Byman T. Boucher, Judge. Action by Joseph Weatherer and others against J. S. Herron and others, as the County Commissioners of Potter County, and C. hi. Breene, as County Auditor of Potter County. From an order sustaining a demurrer to the complaint, plaintiffs appeal.

Hon. J. H. McCoy, Judge. Action by the Citizens’ Trust & Savings Bank against L. U Zenor and others. There was a default judgment, and from an order refusing to open the same, defendants appeal.

Hon. Chas. S. Whiting, Judge. Action by the Aultman Engine & Thresher Company against Charles E. Young and another. From an order sustaining a demurrer to the complaint and a judgment for defendants, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by Isaac S- Jones against Harry W. Subera and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Hon. J. H. McCoy, Judge. Action by H. J. Rock and another, as executors of the will of John G. Zimmermann, deceased, against Laura Zimmermann and others. From the judgment, Laura Zimmermann took one appeal and certain other of the defendants another appeal, .which appeals were submitted together.

Hon. J. II. McCoy, Judge. Mandamus by H. L. Spackman against Philip A. Gross, as sheriff of Day County. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

Hon. George H. Marquis, Judge. Action by the Pittsburg Plate Glass Company against J. D. Leary and another, as 'copartners, and the New Century • Company. From the judgment and the denial of a new trial, both plaintiff and the New Century Company appeal.

Hon. Chas. S. Wi-iiting, Judge. Action by A. A. Olson against Frank R. Rydl. From a judgment for defendant and an order denying a new trial, plaintiff appeals.

Hon. Frank B. Smith, Judge.. Edwin J. Riggs was convicted of the rape of a female under 18 years of age, and, from the judgment of conviction and an order denying a new trial, he appeals.

Hon. Frank B. Smith, Judge. Action by Charles E. Gibson against Frank Pelcarek and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals. The first tax deed is void on its face because it does not recite that it appeared that the land had been assessed and charged on the tax book or duplicate for the year 1892, for non-payment of taxes of which year said deed recites the tax sale upon which it is based to have been made.

<p>A county upon collection of a city’s taxes retained an amount; as commission, in excess of that allowed by statute. The retention was, however, public and ¡open under a claim of right in good faith, and known to the city. Held, that limitations ran against each amount so retained by the county from the date of each settlement with the city, and that hack of six years the statute of limitations was a bar to recovery of the excess retained.</p> <p>City taxes collected by a county are held under an implied, and not an express, trust, and the statute of limitations applies to bar a recovery by the city of the excess commission retained by the county for making the collection, where done openly under a claim' of right, in good faith.</p> <p>Where an action for violation of a trust obligation is cognizable on the law side of the court, and the remedy is concurrent and adequate at law, the statute of limitations applies, though relief is sought in equity.</p> <p>The statute of limitations applies to bar a recovery, though an accounting may be necessary to determine the amount due, if the account can be taken in an action at law as well as in equity, and this is true where the remedy is actually sought in a court of law.</p> <p>Haney, J., dissenting.</p>

<p>Appeal from' Circuit Court, Minnehaha County. Hon. Joseph W. Jon]$s, Judge.</p> <p>Action by the Town of Colton against the South Dakota Central Land Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Turner County. Hon. 'E. G. Smith, Judge.</p> <p>Action by Centerville Township against Jacob Jenter. From a judgment for plaintiff and 'an order denying a new trial defendant appeals.</p>

Hon. JamDs ’H. McCoy, Judge. Action by W. I. Lothian against the Western Union Telegraph Company. From a judgment for plaintiff and an order denying a new trial, defendant -appeals.

Hon. J. H. McCoy, Judge. Action by John Bircher and another against the Modern Brotherhood of America. From a judgment for plaintiffs and an order denying a new trial, defendant appeals.

<p>Original application for a writ of habeas corpus by Atwood Nesson.</p>

Hon. Frank Mc-Nulty, Judge. < Julius Flagstad was convicted of selling intoxicating liquor without having obtained a license, -and he appeals from the conviction and an order denying a new trial.

<p>Foreclosure of a mortgage is not barred by the running o£ -limitations against the indebtedness, but may be had at any time before expiration of the period of limitation against the mortgage itself.</p> <p>A mortgage reciting, “In witness whereof, the said parties of the first } art have hereunto set their hands and seals,” and in which the word “seal” follows the name of each mortgagor, is a “sealed instrument” within Code Civ. Proc. § 58, permitting an action on such an instrument any time within 20 years.</p> <p>It is not necessary that there should be an express- covenant in a mortgage to pay the debt secured to prevent its foreclosure being barred by the running of limitations against the indebtedness.</p> <p>Notes and a mortgage securing the same are to be construed together as evidencing the entire contract.</p> <p>Under a clause in a mortgage securing several notes due at different times, providing that, if the mortgagor shall fail to pay any portion of either principal or interest when due, then the whole sum shall at once become due and collectable, the statute of -limitations runs, against all the notos upon default in payment of the first.</p> <p>In a foreclosure action, the mortgagor is not privileged to assert in his own defense the rights of a mortgagee prior to plaintiff under a foreclosure by advertisement, without in some manner connecting himself with such right.</p>

Hon. Chas. S. Whiting, Judge. , Action by Jennie E. Smith against John A. Cleaver and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. A concealed deed, and witholding instruments from record is a fraud.

Hon. Frank McNulty, Judge. M. J. Burns, a registered pharmacist, was convicted of violation of the law relative to the sale of intoxicating liquor, and from the conviction and an order denying a new trial he appeals.

Hon. Joseph ' W. Jones, Judge. ' In the matter of the assessment of an inheritance tax upon the estate of Helen G. McKennan, deceased. From an. order of the Circuit Court on Appeal from the County Court, declaring the estate subject to the tax, E. A. Sherman, executor, and others, appeal.

Hon. Joseph W. Jones, Judge. Action by Wiley V. Lowe against the East Sioux Falls Quarry Company. Judgment for defendant, and plaintiiff appeals. It requires no affirmative action by any board or any authority concerned with roads or streets to create a section line a highway.

Hon. Reví. McGee, Judge. Action by Williaim Archer, trustee, against the N. S. Tubbs, Sheep Company and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Hon. J. H. McCoy, Judge. Action by Hiram A. Allen and another against Bernard Ashell. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

<p>Under Civ. Code, § 1796, providing that all kinds of insurance are subject to the -provisions o-f -that chapter, -a mutual fire insurance company is -as effectively bound by section 1849 declaring an acknowledgment in a -policy of the receipt of the premium conclusive evidence of its- payment, notwithstanding any stipulation therein -that it shall not be binding- unti-l the premium is actually paid, -as- an insurance company organized on any other basis.</p> <p>Civ. Code, § 1849, declaring an -acknowledgment in a policy of the receipt -of the -premium -conclusive evidence of its payment notwithstanding any stipulation therein that it shall not he binding until the premium is actually -paid, is not unconstitutional.</p>

Hon. Frank B. Smith, Judge. Action by the'City of Mitchell and others against the Dakota Central Telephone Company. .Judgment for defendant, and plainliffs appeal. Special and local laws are not deemed repealed by general legislation unless the intent to do- so is clear. Ordinarily an express repeal by some intelligent reference to the special act is necessary to accomplish that end.

<p>Since a state lias tiie power entirely to exclude a foreign corporation, so it has the power, subject to constitutional limitations, of prescribing the terms u-pon which such corporation may be permitted to do business within its limit.</p> <p>Const, rat. Í7, § 6, declaring that no foreign corporation shall do business in -the state without having one or more places of business and an authorized agent upon whom- process may be served, was not designed to .prevent legislation imposing additional restraints.</p> <p>Civ. Code, § 883, forbids -a foreign corporation to transact business in -the state, or to acquire, hold, and- dispose of property, or to sue, until it sha-ll have filed with the Secretary of' State a copy of its articles of incorporation. Section 885 requires such a corporation to appoint a resident agent authorized to accept service of process, and that a co-py of such appointment be filed with the Secretary of State and register of deeds of the county where such agent resides. Held, that a foreign corporation may acquire title -to real property within the state without haying complied with the law relating to such corporations; its failure to comply therewith merely subjecting it to a proceeding by the state to prevent it from continuing to exercise its franchise.</p> <p>McCoy and Smith, JJ., dissenting in part.</p>

<p>That trees- had to be dug and packed befor-e -delivery by the seller to the buyer did not bring -the sa-le -thereof within Civ. Code, § 1310, declaring an agreement to manufacture a thing not within the statute of frauds (sections 1238, 1309) relative to sales of personal property.</p> <p>A buyer in no manner waived his right to a -directed verdict by allowing, without objection, proof to show a sale, where it failed to 'establish all the things essential to a valid contract, under -the statute of frauds (Civ. Code, §§ 1238, 1309.)</p> <p>A buyer is not obliged to plead the statute of frauds as a defense.</p> <p>Under the statute permitting defendant to defend or not in a justice’s court, without in any manner abridging -his right -to demand a new trial in the circuit court, a buyer, by failure to raise the question of the statute of frauds in a justice’s- court, did not -preclude himself from making such defense in the circuit court.</p>

Hon. Joseph W. Jones, Judge. Action by W. G. Lund against M. H. Bapp. P'rom a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>Where it cannot he assumed -the verdict would have been the same had certain evidence been excluded, error, if any, in admitting it, is reversible.</p> <p>A copy of a book entry is inadmissible; no 'adequate reason being shown for not producing -the original.</p> <p>In an action for the price of sand, entries in books kept by men hauling sand for plaintiff and receiving half they earned, and intended to keep track of their compensation, were inadmissible against defendant, without proper foundation being laid by calling the men who hauled the sand or satisfactorily accounting for their absence.</p> <p>A copy of an incompetent writing is itself incompetent.</p>

<p>Appeal from Circuit Court, Codington County. Hon. GSorGE H. Marquis, Judge.</p> <p>Action by P. J. McCavick against the Independent School District of Florence. From an order overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Earl Johns-was convicted of .robbery in the second degree, and he appeals.</p>

<p>A verdict upon conflicting evidence will not be disturbed upon appeal.</p> <p>On the trial of an action for rent, defendant denied having entered into any contract with plaintiff, and, after verdict for defendant, plaintiff moved for a new trial on the ground of newly discovered evidence, which was that defendant -had tried to lease the premises in question to the newly discovered witness-; the effect being to impeach the defendant. Held, that there was no error in denying a new trial.</p> <p>No request having been made, failure to instruct on a point cannot be assigned as error.</p>

Hon. Joseph W. Jones, Judge. Action by Ida Campbell against Just Johnson, impleaded with another. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Joseph W. Jones, Judge. Action by Charles Lidel against 'the South Dakota Central Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>A railway company, to relieve itself from double liability for loss by fire, must, under Laws' 1907, c. 216, § 2, providing that, if it shall fail to pay such damage within 60 days after notice, the owner shall recover double damages, act within the time prescribed, and, having failed to -do so, an offer to pay after 60 days- is the same as no offer at «all.</p> <p>The evidence and instructions not having- been brought to the Supreme Court, it must be presumed that the trial court -properly instructed the jury.</p>

Hon. Joseph W. Jones, Judge. Action by Louis Krumm against the South Dakota Central Raihvay Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Plon. Joseph W. Jonjís, Judge. Action by A. A. Baldwin against the South Dakota Central Railway Company. From a judgment for plaintiff, and an order denying a new -trial, defendant appeals.

<p>Appeal from Circuit Court, Lincoln County. Hon. Joseph W. Jones, Judge.</p> <p>Action by George H. Montague against Inez May Montague. From an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Miner County. Hon. Loring E. Gappy, Judge.</p> <p>Action by the Northwestern Port Huron Company against H. W. Zickrick. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals.</p>

<p>Pol. Code, § 1732, taken from Laws 1883', -c. 112, sube.. 2, § 61, conferring on county commissioners general supervision of county roads and tbe power to appropriate money from tbe county treasury for opening and vacating, or improving the same, was - not repealed by Pol. Code, § 213-7, taken from 'Laws 1899, c. 41, re-enacted'’'by Laws 1905, c. 43, creating, by subsections 3 and 7, funds to- be expended on county roads. ;</p> <p>Though the history of legislation may be resorted -to for the purpose of construction, no part of either Revised Code shall be disregarded on the theory that it was erroneously included by the Code commissioners.</p> <p>Pol. -Code, § 1732, conferring on county commissioners general supervision of county roads and t!he .power to appropriate money from the county treasury as they think advisable for opening, vacating, or improving such roads, is not inconsistent with the -provisions of the statute authorizing and requiring local subdivisions to collect -and expend money on the same roads within their respective -boundaries, and clothes -the commissioners with authority to appropriate money out of the county general fund to repair and improve county roads within organized civil townships.</p> <p>Pol. Code, § 1732, conferring on county commissioners general supervision of county roads and the power to appropriate money from the -county treasury as -they think advisable for opening, vacating, or improving such roads, invests the commissioners with authority to appropriate money out of the county general fund to repair -an-d improve county roads in territory not included in an organized civil township, notwithstanding section 2137, providing, by subsections 3 and 7, special funds for roads in unorganized territory.</p>

<p>Code Civ. Proc. § 36, abolishing all distinctions between actions at law and suits in equity, and providing that there shall be but one form of action to be denominated a civil action, does not violate any constitutional right.</p> <p>Code Civ. Proc. § 36, abolishing all distinctions between actions at law and suits in equity, and providing that there shall be but one form of action t'o be denominated a civil action, does not in any degree ■ abridge or' change substantive .private rights, whether recognized. under -the .system ,of- equity rules formerly, administered in chancery courts or formerly cognizable in courts of law.,</p> <p>Nor does section 36, Code Civ. P.roc., abridge in -the least the enforcement of a right in any civil action where the ¡particular form of remedy is deemed a part of the substantive right in" equity.</p> <p>Any facts constituting a defense under the rules of equity or at law may be pleaded in an action brought under Code Civ. Proc. § 675, authorizing an action by any person against another claiming an interest in real property adverse to him.</p> <p>‘Statutes of limitation are applicable in bar of rights both legal and equitable.</p> <p>Estoppel by laches is a purely equitable doctrine.</p> <p>. The statute of limitations and estoppel by laches are quite distinct, the statute being an arbitrary bar created by legislative enactment, .while estoppel arises from the conduct of the .parties' themselves.</p> <p>The doctrine of estoppel either, by laches alone or by waiver applies in any case to determine the rights.of the parties from the ‘time when a mistake of law or of fact becomes known to the .party whose rights are affected.</p> <p>An action to recover the possession of land- based on a naked legal title, the land having been sold- under a mortgage foreclosure invalid because an assignment of the mortgage was not acknowledged so as to he entitled to record, is barred by estoppel, where plaintiffs were fully apprised of the foreclosure by one claiming to be an assignee of the mortgage, and tha-t a deed had been executed to such assignee, and possession surrendered to such assignee, and .paid no taxes for 12 years and knew that the land had been sold to defendant, and where plaintiffs did not show when they became advised of their rights, nor offer to redeem from the mortgages nor repay the taxes.</p> <p>A party setting u.p that he ought not to be estopped by laches because of a mutual mistake of law as affecting his rights has, in equity, the burden of showing when he‘first became advised thereof.</p> <p>Corson, J., dissenting.</p>

<p>Instructions not excepted to are tb.e law of the case upon appe¿l.</p> <p>Evidence in an action for injuries in a railroad crossing accident held to support a finding that plaintiff did not drive into a .place of danger, but that when driving along a place of safety, and under circumstances that would ordinarily have.carried him across the track ahead of the engine, such -place was suddenly converted into one of danger by the unexpected blowing off of steam by an engine on the opposite side of the crossing, which caused plaintiff’s team to sto.p, diverted his attention to the team, and delayed his progress until the engine struck him.</p>

Hon. Joseph W. Jones, Judge. Action by H. C. Jensen against the South Dakota Central Railway Company. From, a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Gborgs H. Marquis, Judge. Action by William Boll against Gilbert G. Ostroot. From an- order granting a temporary injunction, defendant appeals.

Hon. EG. Smith, Judge. Action by the John Deere Plow Company against the Lakeside State Bank. Verdict for defendant, and, from an order granting a new trial, it appeals.

Hon. GjsorGU H. Marquis, Judge. Action by Helen S. Merrill against the .Minneapolis & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Motion by defendant to extend the time within which to serve And file its Abstract and brief upon appeal.

Hon. Frank B. Smith, Judge. Action by Alida C. Bliss against C: D. Tidrick. From a judgment for plaintiff an an order denying a new trial, defendant appeals. It is only an instrument that has some validity, and may in some manner affect real estate that can be recorded. There is no statute authorizing the recording of a void instrument. Stone v. French, I Am. St. 241.

<p>Appeal from Circuit Court, Custer County. Hon. Levi McGee, Judge.</p> <p>Action by J. S'. Putnam against Custer County. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

Hon. Joseph W. Jones, Judge. Action by J. C. Lawver against the Globe Mutual Insurance Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Evidence -that notice of additional insurance was mailed to the company is not sufficient proof of compliance' with a policy requiring notice of additional insurance to be given to the company, where its receipt is denied by the person addressed. Fair-field Packing Co. v. Southern Mut. Fire Ins.

Jonís, Judge. Action by Sioux K. Grigsby against. Carl G. Wopschall and others. There was a default judgment for plaintiff, and from an order denying a motion to vacate such judgment on the ground that the court had no jurisdiction defendants appeal.

Irwin PI. Myers> Judge. Action by C. C. Lallier against the Pacific Elevator Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Joseph W. Jones, Judge. Action by the State Banking & Trust Company against F. W. Taylor. Judgment for defendant, and plaintiff appeals.

-JoskRi-i W. Jonjís, Judge. Action -by Thomas McAndrews against the Security State Bank of Montrose, South Dakota. There was judgment by default against defendant-, and from an order refusing to set the same aside, plaintiff appeals.

E. G. Smith, Judge. Retters testamentary having been issued to Paul A. Meyer upon the estate of George H. Meyer, deceased, Estella Meyer, 'his widow, appeared, and petitioned that certain of the estate be set apart to her as exempt, and -that a certain- allowance be made to her. Erom the judgment of the county court, both the executor and decedent’s widow appealed to the circuit court, and from the judgment-of the circuit court the executor appeals.

<p>Original proceedings in disbarment against Charles H. Schull.</p>

Joseph W. Jones, Judge. Action by Arlington B. Melody against the Great Northern Railway Company. From an order sustaining a dem *.rrer to the answer, defendant appeals. Freight and passenger rates are fixed by the tariff schedules filed with the interstate commerce commission and published as required by law, and they can not be varied. The schedule tariff rates absolutely govern. Gulf, Co. & Santa Fe, plaintiff in error, v. Heffly & Tewis, 158 U. S. P. 98; Tex. & Pac. Ry.

Hon. Arva A. Tayror, Judge. Contest by T. M. Treat against W. A. Morris and others of an election upon the question of selling intoxicating liquor at retail. From a judgment for respondents, contestants appeals.

Frank B. Smith, Judge. Action by the J. F. Anderson Dumber Compaq against James Spears and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Frank B. Smith, Judge. Action by F. V. Webb against Thomas Burroughs. From a judgment for plaintiff and an order denying a new trial, defen riant appeals.

E. G. Smith, Judge. Action by Sylvanus J. Thomas and others against the Modem Brotherhood of America. From a judgment for plaintiffs and an order denying a new trial, defendant appeals.

Hon JosRpi-i W. Jonrs, Judge. Action by Eloise Cardozo Garcia against Emanuel R. Garcia. From an order sustaining a demurrer to the complaint, plaintiff appeals. A void and prohibitive marriage has never been permitted to stand within the confines of the state prohibiting it, or making it a crime, because the domicile of the parties, or the marriage contract, was within a state or country permitting such unions.