Volume 25 — Utah Reports

<p>1. Criminal Law: Larceny: Jury: Powers of Judge: Statutes Construed.</p> <p>Revised Statutes, sections 681, 712, providing that judgment and orders of the district court may he entered either in term time or vacation, and that a judge may exercise out'of court all powers conferred on him as judge, in so far as such sections relate to the right of the judge to discharge jurors before the commencement of the term for which they are summoned, are not in conflict with, but in addition to, section 1300, enumerating causes authorizing the court to discharge jurors, and section 1318 providing that the clerk on the day trial jurors are summoned to appear shall call their names, and that the names of those not excused shall he put into the trial jury box.</p> <p>2. Same: Challenge to Panel.</p> <p>Under Revised Statutes, section 4820, providing that a challenge to the panel can only be founded on a material departure from, the forms prescribed in respect to the drawing and return of the jury, or the intentional omission of the proper officer to return one or more of the jurors drawn, the act of the judge in excusing jurors is not ground for such challenge.</p> <p>3. Cattle Theft: Evidence: Limit to Cross-Examination.</p> <p>It is not error, in a prosecution for cattle tlieft, to refuse to permit tlie owner of the stolen cattle to he asked, on crosst-examination, on the mere statement by defendant’s counsel that such questions are for cross-examination purposes, if the owner’s wife resides at the place where he resides, and where his children reside.</p> <p>4. Instructions: Refusal to give not Error, When.</p> <p>Where the instructions in a cattle-theft case, taken as a whole, define larceny as the felonious stealing, etc., of the personal property of another, and say that the State must prove each element of the offense beyond a reasonable doubt, that the offense can not be committed without the act constituting it being committed with a felonibus intent, that defendant’s confession alone will not authorize his conviction, and that the taking of the cattle under a mistaken claim of right will not constitute larceny, it is not error to refuse instructions offered, though in different language, that it must be proven beyond reasonable doubt by evidence outside of and independent of confessions that the animal was feloniously taken, and that if it was taken openly, or under claim.of title, the taking was not felonious and would not constitute the crime.</p> <p>5. Confession: What is, Question for Jury: Admissibility</p> <p>A written statement by a defendant charged with cattle theft, stating that he took the animal in question from a certain ranch, which is shown to have been voluntary, and not extorted by threats and promises, is admissible in evidence, the jury being instructed that, if they find that defendant voluntarily confessed, such confession may be considered against him; the question whether such instrument is a confession being for the jury.</p> <p>6. Larceny: Value of Property: When Immaterial.</p> <p>The theft of cattle being made grand larceny by Session Laws 1899, page 50, without regard to the value of the animal stolen, it is not error in a prosecution therefor to instruct that the value of the stolen animal is immaterial.</p>

— Hon. 8. W. Stewart^ Judge. The defendant was prosecuted for, and convicted of, the crime of embezzlement. Dpon being sentenced to imprisonment in the State prison, he appealed. Clearly there was error in the charge of the court upon the subject of character and in the refusal to give the instructions requested by the defendant.

<p>1. Criminal Law: Rape: Information: Resistance: Allegation: Sufficiency.</p> <p>Revised Statutes, section 421.7, defines rape to be "an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances,” among which the third is, “where she resists but her resistance is overcome by force or violence.” An information charged that accused unlawfully, forcibly, feloniously, and against the will and without the consent of the prosecutrix, ravished her. Held, that a motion in arrest of judgment on the ground that the information did not allege resistance overcome by fear or violence was properly overruled; the language being equivalent to a statement of resistance overcome by force.</p> <p>2. Same: Better Practice to Use Language of Statute.</p> <p>While it is the better and safer practice, when a crime is defined by a statute, and all of its constituent elements are therein specifically set out, to charge it in the indictment or information in the language of the statute, it may be properly charged in other words of equivalent import.</p> <p>3. Appeal: Defective Bill of Exceptions: What Objections not Considered: Chapter 39, Revised Statutes 1898.</p> <p>Revised Statutes, page 1012, section 4943, provides that on the trial of an information the defendant may except to the decision of the court in rejecting or admitting testimony or in instructing the jury; section 4946 provides that bills of exceptions in criminal cases shall be settled, signed, and filed as in civil cases; and section 4948 provides that when written requests to charge have been presented, given, or refused, such requests need not be excepted to or embodied in a bill of exceptions, but shall form part of the record. Held, that where, on appeal in a criminal case, complaint is made of the giving and refusing of certain instructions, and of the admission and rejection of certain «wí-dence, but it does not appear tnat tlie instructions were written. and the stenographic notes of the trial proceedings, purporting to he a hill of exceptions, are not authenticated, save by the stenographer’s certificate, the objections can not he considered.</p>

— Hon. J. E. Booth, Judge. Action to recover damages for personal injuries alleged to bave been received by tbe plaintiff through, the negligence of the defendant company in the operation of its railroad. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Hon. T. Marioneatuc, Judge. Action to recover damages for personal injuries alleged to have been received by the plaintiff while working in and' about the defendant’s stone quarry. From a judgment in favor of the plaintiff, the defendant company appealed.

— Son» 8. W. Stewart, Judge. . Action for divorce for cruelty. From a decree in favor of defendant, the plaintiff appealed. The court erred in excluding and refusing to consider the evidence offered by plaintiff tending to prove a general course of ill-treatment and showing the general character, disposition and behavior of the defendant.

— Hon. W. G. Hall, Judge. Action in ejectment. Erom a judgment in favor of the plaintiff, the defendant appealed. It was not enough to warrant a decision in favor of plaintiff to have found that it does not appear that said Bishop had acquired influence over Ohatfield or that he took advantage of such or any influence. It must, on the contrary, to uphold this judgment, be made to appear that such was not the fact.

— ■Eon. W. G. Hall Judge. Action for separate maintenance under section 1216, Revised Statutes 1898. Erom a judgment in favor of tbe defendant, tbe plaintiff appealed. This court in the decision of the former case (Hoagland v. Hoagland), confined its inquiry to the single question before the court, that is, could the judgment of the Colorado court divorcing plaintiff and defendant, be collaterally attacked, and held that it could not.

— Hon. O. W. Morse, Judge. Action by the plaintiff to recover a sum of money alleged to be due under the terms of a written contract. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Hon. A. N. Cherry, Judge. Action by Seward H. Fields, Trustee, and the Bank of Commerce, to foreclose a trust deed executed by the Daisy Gold Mining Company. The Salt Lake Hardware Company also commenced a suit against the mining company for the purpose of foreclosing its mechanic’s lien. The hardware company appeared in the action commenced by Fields and the bank, and answered, and set forth its claim under the mechanic’s lien by way of cross-complaint.

— Hon. Charles H. Hart, Judge. Action to set aside a decree of divorce obtained by the defendant from the plaintiff. From a decree sustaining in part and setting aside in part the said decree, both parties appealed. The plaintiff asks a court of equity to relieve her from the position in which she finds herself because the appellant did not carry out his alleged promises.

— Hon. H. H. Bolapp, Judge. Action to restrain the defendants from continuing to divert water from Butterfield creek, the use of which the plaintiff claims by right of prior appropriation. From a decree in favor of the defendants, the plaintiff appealed.

— Hon. O. W. Morse,, Judge. Action to recover damages for alleged breach of contract. From a judgment in favor of the plaintiff, the defendant appealed.

— Eon. W. 0. Hall Judge. Action by the plaintiff, as the surviving wife and widow of John E. Park, deceased, claiming as such widow to be entitled to one-third of certain real estate which the deceased in his lifetime sold to the defendant, to have the same partitioned and set apart to her as her separate property in fee simple. Erom a decree in favor of the defendant, the plaintiff appealed. STATEMENT -OE EACTS.

— Son. W. 0. Sail, Judge. Action by the executor of the last will of John R. Park, deceased, to quiet title to certain property of which disposition was made in the will and in which property the defendant claimed an interest as widow of the deceased. From a decree in favor of the plaintiff, the defendant appealed.

<p>Appeal from tbe Third District Court, Salt Labe County.— Eon. W. G. Edil, Judge.</p> <p>Tbe opinion states tbe case. Prom an order denying tbe petition, tbe petitioner appealed.</p>

<p>Partnership: Settlement of Account: impeachment: Fraud, or Mistake: Pleading.</p> <p>The party seeking to impeach the settlement of a partnership account for fraud or mistake must set out in his pleading the particular facts constituting the fraud or mistake relied on,, and evidence of facts not alleged is inadmissible.1</p>

— Mon. 3. W. Stewart, Judge. Action by the plaintiff, as trustee, to set aside a certain deed, executed by Mathews to his wife, on the ground that tbe conveyance was fraudulent as to bis creditors.. Prom a judgment in favor of tbe plaintiff, tbe defendant appealed. Tbe contention of tbe appellant is tbat tbe deed to ber was made in good faitb.

— Hon, Jacob, Johnson> Judge. Action by the State, to recover on an appeal bond, against the sureties of One TL P. Morrey. Prom a judgment in favor of the State, the defendants appealed.

— Hon. W. M. McOarty, Judge. Action to recover damages from the-defendant for injury to «a flume constructed and used to convey water to a power plant for the purpose of generating power to run the plaintiff’s quartz mill, and to obtain relief by injunction. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Hon. Jacob Johnson, Judge. Tbe defendants were convicted and sentenced on an indictment for grand larceny. Affirmed on appeal. Erom an order overruling a motion for a new trial, tbe defendants again appealed.

— Son. Charles W. Morse, Judge. Action by a railway company to condemn a right of way across the property of the defendant company. Erom a judgment awarding the defendant company $9,678 damages, the plaintiff appealed: STATEMENT OE EAOTS. This is an action by the Rio Grande Western Railway Company to condemn a right of way across the property of the defendant Utah Nursery Company.

District Court, Cache County.— Hon. Charles H. Hart, Judge. Action to recover a certain sum alleged to be due upon an implied contract for the furnishing of certain goods and also for certain services rendered by plaintiff to defendant’s intestate. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Son. W. M. McCarty, Judge. Action by plaintiffs as stockholders of defendant bant against tbe defendants for an accounting and for damages alleged to have been occasioned by reason of negligence in tbe management of tbe bank by its directors and officers. Erom a judgment bolding tbe defendants liable, tbe plaintiffs appealed. Tbe defendants, Brougb, Spencer, Murpby, and Kuhn also appealed.

<p>1. Witnesses: Privilege: Physician.</p> <p>Under Kevised Statutes, section 3414, providing that a physician can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe for the patient, a physician who was sent by a street railroad company to examine a passenger who had been injured was not entitled to testify as to any information acquired while attending such person.</p> <p>2. Same: Presumption.</p> <p>Where a physician was sent to make an examination of a passenger injured by a street railroad company, it will be presumed that the relation of physician and patient existed with regard to such examination, and that the information obtained was for the purpose of enabling the physician to prescribe and act for the patient.</p>

— Hon. W. G. Hall> Judge. Bill in equity to restrain the defendant from entering into contracts with certain publishing houses for the future use of certain text-books in the district schools of the State of Utah. Erom a decree perpetually enjoining the defendant, he appealed. The appellant first contends that the executive of the. State can never be interfered with by the court of chancery. Bancroft v. Thayer, 5 Sawyer 502; Western By.

— ■ Hon. O. W. Morse, Judge. Action to recover damages for personal injuries alleged to have been received while plaintiff was a passenger on one of the defendant’s trains. Erom a judgment in favor of the plaintiff, the defendant appealed. The rule of law is that a hypothetical question may assume any facts which the evidence tends to establish, but it must include and be based upon all the material facts, and this is especially true of material undisputed facte.

[Appeal from tbe Second District Court, Weber County.— Hon. H. H. Bolapp, Judge. Action upon an administrator’s bond, given by George H. Burgitt during bis lifetime as administrator of tbe estate of Edward A. Reed, wherein George J. Kelly and Andrew J. Warner were sureties. Erom a judgment in favor of plaintiff, defendants appealed.

— Ron. G. W. Morse, Judge. Action to recover damages for personal injuries alleged to have been received because of the negligence of the defendant company. Erom a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS. This action was brought to recover damages- for personal injuries alleged to have been received because of the negligence of the defendant company.

— Hon. G. W. Morse, Judge. Action to recover damages for the wrongful death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendants. Erom a judgment in favor of the plaintiff, the defendants appealed.

— Hon. John E. Booth, Judge. Adverse proceeding to determine the right of possession to the Silver King Mining claim. The opinion states the facts. From a judgment denying relief to either party, both parties appealed. There was no attempted delivery of the deed until after the corporation bad been fully organized. That being true, there was no execution of the deed in question, to a grantee not in esse.

— Hon. Henry H. Rolapp, Judge. Action to- recover damages for personal injuries alleged to have been received through the negligence of the defendant. From a judgment in favor of the defendant, the plaintiff appealed. STATEMENT OK EAOTS. This is an action to recover damages for personal injuries alleged to have been received through the negligence of the defendant.

— ■ Eon. W. O. Rail, Judge. Action to quiet title to certain real estate situated in Salt Lake county and claimed as a liomestead by the plaintiff. Erom a decree in favor of the defendants, the plaintiff appealed. Laws governing exemptions from forced sales on exeeu-' tion affect the remedy only.

— Hon. W. G. Hall, Judge. Action to quiet title in the plaintiff to a certain quantity of the waters of Little Cottonwood creek. Erom a decree in favor of the defendants, the plaintiff appealed.

— Hon. 8. W. Stewart, Judge. The defendant was charged with and convicted of the offense of keeping open a place of business on Sunday. He appealed. The following cases sustain the constitutionality of Sunday laws: Ex parte Andrews, 18 Cal. 619; People v. Hav-nor, 149' N. Y. 195; People v. Bellet, 99 Mich. 151; Ex parte Burke, 59.Cal. 6; Bloom v. Richards, 2 Ohio St. 387; McGatrick v. Wason, 4 Ohio St. 566; State v. Rott, 31 La. Ann. 663; 33 Am. Rep. 224; Spechtv.

— Hon. Henry H. Bolapp, Judge. Action for damages for an alleged breach of contract. From a judgment in favor of the plaintiffs, the defendant appealed. When one party to an executory contract, by his conduct manifests a deliberate intention to violate it in all its material conditions, the other party is absolved and released from further obligation to perform, and no' suit for damages in such case, can or should be permitted, to succeed.

— Hon. Charles H. Hart, Judge. Action to determine the right of succession to the estate of John T. Garr, deceased. Erom a judgment in favor of the defendants, the plaintiffs appealed.

Original petition for a writ of babeas corpus. Tbe writ was duly issued, served and return made. Tbe facts are stated by tbe court. STATEMENT OE EAOTS. On the 25th day of February, 1902, the defendant in this case was duly convicted in the second judicial district court of this State of the crime of forgery. The court made an order directing the defendant to- appear March 5, 1902, for sentence.

— Hon. Jacob Johnson, Judge. The defendant was prosecuted for murder and convicted of voluntary manslaughter. He was sentenced to imprisonment in the penitentiary and appealed.

— Hon. O. W. Morse, Judge. Action to recover damages for tbe death of the plaintiffs’ son alleged to have been caused by the negligence of the defendant. From a judgment dismissing the action for want of jurisdiction, the plaintiff appealed. STATEMENT OE EAOTS.

— ■ Hon. W. 0. Hall, Judge. Action to cancel and set aside a deed. Erom a judgment in favor of the plaintiff, the defendants appealed. Slight evidence of undue influence is insufficient to establish it. The influence must amount to force and coercion, destroying free agency as to the very act and the exertion of undue influence upon the very act must me proved. Estate of Carpenter, 94 Cal. 406.

— Hon. Charles H. Hart, Judge. Action of replevin. The lower court, on the grounds that the affidavit and acknowledgment of tbe chattel mortgage on the sheep were not in accordance with the law of Idaho and that the mortgage was not sufficient to charge defendants with notice of its existence, instructed the jury to return ¿ verdict for the defendants. Erom such judgment, the plaintiff appealed.

'Appeal from the Second District Court, Weber County. —Hon. H. H. Rolapp, Judge. Petition by the appellant to set aside the appointment of the trust company as administrator of the estate of John Tasanen, deceased. From an order denying the petition, the petitioner appealed.

<p>1. Conversion: Parties: Co-owner.</p> <p>Under the direct provisions of Kevised Statutes 1898, section 2919, the owner of an undivided half interest in personal property may maintain an action for conversion without joining his co-owner as either plaintiff or defendant.</p> <p>2. Same: Complaint: Sufficiency.</p> <p>A complaint, in an action by the owner of an undivided half Interest in personal property for conversion, was not insufficient because it failed to show who owned the other half.</p> <p>3. Same# Defense: Not Available on Demurrer: Must be Pleaded in Answer.</p> <p>In an action for conversion of personal property by one claiming a half interest in the property, a defense that defendants owned the other half, and had taken possession for a legitimate purpose, could not be availed of on demurrer to the complaint, but should be pleaded in their answer.1</p>

<p>1. Mining Corporations: Sale of Stock: Assessments: Irregularities: Acquiescence.</p> <p>Where a corporation acts within the scope of its general powers, and such acts are irregular, and performed in a manner not authorized by its charter, but are neither criminal, opposed to good morals, nor against public policy, they are voidable only, and a stockholder aggrieved thereby may acquiesce in and ratify what has been done, or may disaffirm and repudiate the voidable proceeding within a reasonable time.</p> <p>2. Same.</p> <p>A stockholder of a mining corporation, whose duty it was, as president, director, and business manager, to see that assessments on stock were regularly made and collected, and who knew that it was the uniform practice of the company to levy assessments though a majority of the stock was not represented at the meetings, and though small amounts of previous assessments remained uncollected, could not, after his own stock had been sold under such assessments, complain of their irregularity.</p> <p>3. Same: Holdover Directors: Powers.</p> <p>Holdover directors of a corporation are still in office, and qualified to act, until their successors are elected and qualified.1</p> <p>4. Same: Failure to File Oath: Effect.</p> <p>Where directors of a mining corporation had taken and subscribed to, but not filed, their oaths, as required by Revised Statutes 1898, section 317, an assessment on stock made by them will not be set aside, no one appearing to have been misled or injured by the irregularity.</p> <p>5. Same: Directors’ Meeting: Notice.</p> <p>An assessment on the stock of a mining corporation at a meeting at which but four of the seven directors were present, no notice thereof having been given to the absentees, was void, and stockholders whose stock was sold under such assessments were entitled to recover, unless estopped by. acquiescence or laches.2</p> <p>6. Same: Facts Held to Establish Estoppel.</p> <p>Stockholders of a mining corporation whose stock had been sold under void assessments, but who, with full knowledge of the irregularity, made no objection for more than ten months after the last sale, and who repeatedly stated that they had abandoned the enterprise and acquiesced in the forfeiture, the stock meanwhile having been bought by innocent parties, were estopped from claiming that such sales were void.3</p> <p>7. Same: Assignee Estopped.</p> <p>One who procured the assignment of mining stock with full knowledge of facts estopping the owners from asserting that a sale thereof to pay assessments was void, was also estopped from making such claim. Baskin, C. J., dissenting.</p>

— ■ Hon. 8. W. Stewart, Judge. Action to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant company. Erom a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OK FACTS. On the 26th day of May, 1900, plaintiff was, and for thirteen years prior thereto had been, employed by defendant corporation as a freight conductor.

— Son. W. G. Hall, Judge. Action to recover a certain sum alleged to be due upon a contract wherein the plaintiff agreed to furnish certain material to be used in the construction of a house for the defendant. From a judgment in favor of the defendant, the plaintiff appealed.

Salt Lake County.— Hon. O. W. Morse, Judge. Action, by virtue of the statute of eminent domain, to obtain, the right to connect a flume with the defendant’s canal for the purpose of discharging certain water into it after using the same in the operation of the plaintiffs power plant.

— Mon. Thomas Marioneaux, Judge. Action to recover for the negligent hilling of -the plaintiff’s infant daughter at Mammoth in Juab county. From a judgment in favor of the plaintiff, the defendant appealed. Contributory negligence was not pleaded in the answer as a special defense.

<p>1. Waters and Water Courses: Primary and Secondary Uses: Appropriation: Appeal: Findings: Conclusiveness.</p> <p>Where the evidence is not before the court on appeal, it is concluded by the findings of the trial court.</p> <p>2. Same: Vested Rights-</p> <p>The abrogation by a city of an agreement between it and a power company, whereby the latter was permitted to devote water primarily appropriated by the city to a secondary use, can not divest rights which had become vested by the agreement, and thus invalidate the appropriation once complete.</p> <p>3. Same: Findings: Supported by Evidence.</p> <p>Where it was shown by plaintiff’s evidence that a secondary appropriation of water had been made by defendant, and water actually used thereunder by agreement with plaintiff, plaintiff can notv successfully contend that a finding that a valid appropriation had been made was not supported by the evidence.</p> <p>4. Same: Rights of Primary Appropriator.</p> <p>A primary appropriator of water can not complain of a secondary appropriation where there is no interference with, or abridgment of, the primary use.</p> <p>5. Same: Usufructuary Right.</p> <p>The right to the use of water is, under the law of appropriation, as under the common law, merely usufructuary. Baskin, C. J., dissenting.</p>

— Son. S. W. Stewart, Judge. Action to recover the possession of fourteen hundred and thirty head of sheep, their wool and increase, or the value thereof. . Erom a judgment in favor of the plaintiff, the defendants appealed. The transactions by which the sheep were delivered to Jones were sales and not bailments. We direct especial attention to the language of all of the contracts under which Jones received sheep from these various parties.

— Hon. W. O. Hall, Judge. Action to set aside certain, conveyances- of real estate made by deceased during bis lifetime to- tbe defendant. Tbe opinion states tbe facts. Erom a decree in favor of tbe plaintiff, tbe defendant appealed.