Volume 26 — Utah Reports

— Hon. W. C. Hall, Judge. Action by the plaintiff as the owner of the “Yes You Do” mining claim, in support of an adverse claim •duly filed… Held: that the plaintiff having failed to establish a valid title to the “Yes You Do, ’ ’ and there being no adverse claim before the court, plaintiff could not give evidence to prove that at the time of the location of the “Uhlig No. 1” .and the “Uhlig No. 2,” the discoveries of both of said claims and the ground embraced therein were…

— Hon. C. H. Hart, Judge. Action in the nature of an application for a writ of prohibition directed to the members of the city council of Logan City, on the relation of S. W. Riter, to prohibit said city council from issuing and selling municipal bonds the proceeds of which are proposed to be used in installing an electric lighting plant to be owned and controlled by the municipality. From a judgment dismissing the action, the plaintiff appealed.

— No». W. G. Hall, Judge. Action in equity brought by the heirs and the administrator of the estate of W. D. Palmer, deceased, to quiet title to certain property owned by the deceased in his lifetime. Prom a decree in favor of the plaintiffs, the defendant appealed. In other words, an agreement renouncing marital rights .and obligations is void.

— Ho». W. C. Hall, Judge. Petition for permission to sell real estate.' Upon the hearing of the petition the district court granted, against the objections of the appellants, an order directing the sale. From the order directing the sale, the objectors appealed.

Weber County. — Hon. H. H. 'Bolapp, Judge.' Action by the State of Utah on tbe relation of Joseph Hall against Albert J. Howell to determine the right of said Howell to exercise, as judge of the municipal court of Ogden City, the jurisdiction conferred by chapter 112, page 117, Laws of Utah 1901. From a judgment dismissing the complaint, the relator appealed.

— Hon. 8. W. Stewart, Judge. Action before a justice of the peace in the precinct of Salt Lake City to recover on a certain promissory note of the value of $¿0.

— Hon. C. W. Morse, Judge. Action to recover the amount claimed to be due on an accident insurance policy issued by the defendant company to Charles Meyer, deceased. From a judgment in favor of the defendant, plaintiff appealed.

— Idem. W. C. Hall, Judge. -Action in equity to quiet title to certain real property; to declare void a certain mortgage covering the same and purporting to have been executed by the plaintiffs to defendant Conway; to set aside all the proceedings had under the mortgage and to enjoin the defendants and each of them from asserting any title or claim to the property. Prom a judgment in favor of the plaintiffs, the defendants appealed.

— Hon. W. G. Hall, Judge. Action to foreclose a mechanic’s lien. From a judgment in favor of the plaintiffs (granting insufficient relief), they appealed. Held: so far as we know, under a statute like ours, that a materialman must show that the materials furnished by him were actually in the structure upon which he seeks to establish his lien, but only that they were furnished by him to be used for that purpose.

—Hon. H. H. Bolapp, Judge. Action on a promissory note. From a judgment in favor of the defendant Cortez, the pi air tiff appealed. STATEMENT OE EACTS. This is an action on a promissory note which was executed by the defendants to the plaintiff. The comr plaint is in the ordinary form of one on a note, and demands judgment for $2,500 principal, and for interest and attorney’s fee. The defendant Ducheneau filed no answer.

Original action of qno warranto instituted in tMs court by the Attorney-General, on behalf of' the State, to test the right of the defendant to the office of chief of police of Salt Late City.

— Ho». C. W. Morse, Judge. Action to recover the unpaid balance alleged to be due on the sale and delivery to the defendant of a lot of cigars and tobacco. From .a judgment in favor of plaintiffs, the defendant appealed. STATEMENT OE EACTS. This is an action to recover $584.90, the- unpaid balance alleged to be due on the sale and delivery to the defendant of a lot of cigars and tobacco.

— No». S. W. Stewart, Judge. Action by Mary Pugmire and her eight minor children, heirs at law of Andrew Pugmire, to recover damages for the death of her husband alleged to have been occasioned by the negligence of the defendant. From a judgment dismissing the complaint, the plaintiffs appealed. STATEMENT OE PACTS.

Original action in quo walranto instituted by the Attorney-General, on bebalf of the State, to oust the defendant, from the office of district judge of the Third Judicial District.

— Row. H. H. Rolapp, Judge. Action to recover a certain sum for the care and maintenance of a sick and dependent poor person. From a judgment in favor of tbe defendant, plaintiff appealed.

— Him. 8. W. Stewart, Judge. Action to recover money paid under a contract for the sale of personalty. Prom a' judgment in favor of the plaintiffs, the defendant, McCorniek, appealed. If the parties have a joint interest in the matter in suit, an-admission made by one is evidence against all. This proposition of law is supported by a long line of authorities. In fact there seems to be no dispute about it. The following case is exactly in point: Botan v. Nichols, 22 Ark. 244.

— Eon. H. E. Rolapp, Judge. Action to recover damages alleged to have been occasioned by the failure of the defendant to transmit messages. From a judgment in favor of the plaintiffs, tire defendant appealed. The telegrams were written upon a printed form containing certain terms, and were signed by the sender. This amounted to an agreement that they should he sent according to such terms.

—Hon. H. H. Rolapp, Judge. Action to recover damages for the death of plaintiff’s son, alleged to have been occasioned by the negligence of the defendant company and also on an assigned cause of action for injury at the same time to a span of horses, harness, sled, hayrack and hay. ■ Prom a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE PACTS.

—Eon. H. H. Bolapp, Judge. Action to recover for a personal injury alleged to have been caused by the negligence of the defendant. Prom a judgment in favor of the defendant, the plaintiff appealed.

— Hon. Thomas Marioneaux. Judge. Action of quo warranto' to oust the defendant from the office of treasurer of Beaver county and to put the relator in possession^ thereof. From a judgment, in favor of the relator, the respondent appealed.

Hon. Thomas Marioneaux, Judge. Action to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendant company. The facts are stated in Jen-Irmp v. Mammoth Mining Co., 24 Utah 513. From a judgment in favor of the plaintiff, the defendant appealed.

—Eon. .Thomas Marioneaux, Judge. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The cause was transferred on change of venue from Juab to Millard county. ■ Prom a judg-men in favor of the plaintiff, the defendant appealed.

—Eon. E. E. Rolcupp, Judge. Action to quiet title to a certain parcel of land described in the statement of facts. Prom a judgment in favor of the defendants, the plaintiff appealed. STATEMENT OF FACTS.

<p>1. Adverse Possession: Elements.</p> <p>Under 2 Compiled Laws 1888, section 3137, subdivision 3, providing that in no ease shall adverse possession be considered established unless it is shown that the land has been occupied and claimed for seven years continuously by a party wlm himself or whose predecessors have paid all taxes levied thereon according to law, title by adverse possession must be founded on actual, open, and notorious possession, with an intention to claim as owner and against the rights of the true owner, continuing for the time prescribed, coupled with the payment of all lawful taxes by the claimant.</p> <p>2; - Same: Burden of Proof.</p> <p>Where title to land is claimed by adverse possession, the burden of proving all the elements necessary to constitute such title rests upon him who asserts the claim.</p> <p>3. Same: Findings: Sufficiency.</p> <p>In ejectment, brought in 1899, the court found that defendants since 1880 had remained in open, notorious, and exclusive adverse possession of the property, and had claimed it adversely to plaintiffs and to all the world, and had paid all the taxes levied on the property in their names. It also found that for more than seven years last past defendants had been in open, , notorious, and exclusive adverse possession of the property, and had paid all taxes thereon adversely to plaintiffs, and without any privity of estate in any manner with them. Held, that the findings sustained a judgment for defendants, based .on their claim of title by adverse possession.</p> <p>4. Same: Ejectment by Minor Heir: Administrator’s Failure to Sue: Statute of Limitations: Heir Barred.</p> <p>Ejectment by a minor heir is barred by the failure of the administrator, who is also the heir’s guardian, to sue within the period of limitations prescribed.1</p> <p>5. Cost Bill: Amendment.</p> <p>Where the party securing judgment files his cost bill within time, the court may permit the filing of a supplementary bill as an amendment; his right not being necessarily exhausted by. filing the first bill.2</p> <p>0 Foreign Costs: Rule for Allowance: Presumption.</p> <p>Costs accruing in a foreign jurisdiction, as to the laws of which no proof is adduced, must be taxed according to the domestic fee bill; the foreign law being presumed in such case to be the' same as that of, the forum.3</p>

— Hon. 8. W. Stewart, Judge. Petition by A. C. Ewing, named as executor, for the probate of the will of Charles Van Alstine, deceased. Contest by Charles Gr. Van Alstine and Helen E. Van Alstine, children of the deceased. Prom a judgment denying the probate of the will, the petitioner and another appealed.

— Hon. Charles H. Hart, Judge. Action to recover damages resulting from the alleged negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

— New. W. C. Hall, Judge. Action to collect an inheritance tax on the estate of James M. Ricketts, deceased, under and by virtue of chapter 62, Laws 1901. From a judgment in favor of the relator, the respondent appealed. STATEMENT OE EACTS.

—Hon. H. H. Rolapp, Judge. Action to recover damages for personal injuries alleged to bave been occasioned by tbe negligence of the defendant’s intestate. From a judgment in favor of the plaintiff, the defendant appealed.

<p>1. Jury: Trial by Jury: Action at Law: Equity Relief.</p> <p>The complaint in an action alleged that plaintiffs were the owner3 and in possession of certain land; that defendants on or about a specified date, and repeatedly prior thereto, forcibly entered thereon, destroying the fences and property of plaintiffs, allowing their cattle to escape therefrom, and disturbing plaintiffs in their use thereof; that defendants are insolvent, and threaten to go on the premises and destroy the fences whene-; er they please — and prayed for a judgment in a certain sum for damages and that defendants be enjoined from entering on the premises. Defendants answered, denying the allegations, and averred that for more than twenty years there had been a .highway over the premises, and that they entered on the premises only as was necessary in traveling on the highway. Held, to constitute an action at law, either party to which was entitled, notwithstanding the prayer for injunctive relief, to have the legal issues submitted to a jury.</p> <p>2. Same: Refusal to Grant Jury Trial: Mandamus: Proper Remedy.</p> <p>Where the district court refuses to grant a jury trial in an action at law on demand duly made, mandamus will issue.1</p>

J. E. Booth, Judge. Action to recover certain real estate alleged to be the property of the Rasbands as heirs at law of their father. Prom a decree in favor of the defendants, the plaintiff appealed. STATEMENT OE FACTS. This canse was decided by this court on demurrer to amended complaint, as reported in 20 Utah 407, 59 Pac. 88. The substance of said complaint is there given, and need not be restated here.

—Eon. G. W. Morse. Judge. ■Action for the partition of an undeveloped mining claim. From a judgment in favor of the plaintiffs, the defendants appealed. STATEMENT OE EAOTS. TMs is an action for the partition of an undeveloped mining claim, of which the plaintiffs jointly owned five-sevenths and the defendants two-sevenths.

Lake County. — Hon. W. C. Hall, Judge. Action to set aside and rescind a contract which the complaint alleges plaintiff, through certain false and fraudulent representations made to him by defendant, Alviras E. Snow, was induced to enter into, whereby he sold to Snow for a nominal consideration 145,000 shares of the capital stock of the Morrison Mining Company ; for an injunction restraining the defendants, L. W. Snow and Morton French, from disposing of the stock, which, it…

—Eon. J. E. Booth, Judge. Action for separate maintenance on the grounds specified in section 1216, Bevised Statutes 1898. From a decree in favor of the plaintiff:, the defendant appealed. STATEMENT OF FACTS. TMs is an action for separate maintenance on the grounds specified in section 1216 of the Revised Statutes. It is alleged in the complaint that the plaintiff and defendant intermarried on the 9th of November, 1886.

— Hon. Charles H. Hart, Judge. Action by a rival candidate to contest the election of the defendant to the office of county clerk of Cache county, Utah. From a judgment in favor of the plaintiff, the defendant appealed. , There is no doubt that as a general proposition of law, the ballots are the best and primary evidence, and that the official canvass is secondary evidence.

<p>1. Trial: Jurors: Voir Dire.</p> <p>The object of the examination of jurors on their vow dire is to ascertain whether there are grounds for a challenge for either actual or implied bias, and to enable an accused to exercise intelligently his peremptory challenge.1</p> <p>2. Same: Prejudice of Juror: New Trial: Surprise.</p> <p>When a juror on his vow dire fails to disclose a material fact as to his relations to either of the parties in answer to ques- ■ tions adequate to elicit the same, the party asking the questions, if he and his attorney are ignorant of the facts, is deprived of the benefit he should have from the examination, and is entitled to a new trial, under Revised Statutes 1898, section 3292, subdivision 3, making accident or surprise which ordinary prudence «mid not have guarded against ground for a new trial.</p> <p>3. Same: Relation of Debtor and Creditor.</p> <p>Where a juror on his vow dire states to defendant’s counsel that there is no relation of debtor and creditor between himself and plaintiff, and that he knows of no reason why he can not render a just verdict, when in truth the juror has a suit pending between himself and others and the plaintiff to compel the plaintiff to convey certain land, etc., the defendant, on discovering such facts after trial, is entitled to a new tidal, under section 3292.2</p> <p>4. Ejectment: Compromise Agreement: Construction.</p> <p>Plaintiff and defendant in ejectment agreed that plaintiff should purchase the premises involved, for a certain price, but that, in. the event of failure of plaintiff to purchase within a specified time, defendant should be released from his obligation to convey, and plaintiff forfeit all right thereto. Held, that tha forfeiture clause in the contract referred to the title of plaintiff involved in the ejectment suit.</p> <p>5. Same: Equitable Estoppel: Pleading: Practice.</p> <p>Where, in ejectment, defendant pleads an equitable estoppel, the same should be first passed on by the court.</p> <p>6. Same: Appeal: Amendments.</p> <p>In ejectment, defendant’s answer alleged that prior to such action a third party was proceeding against defendant in ejectment for the same land, when it was agreed between defendant and such party, that the latter should purchase the land, and, in event of his. failure to do so within a certain time, forfeit all his rights, and that there had been a forfeiture, all of which plaintiff knew at the time a conveyance of the land was made to plaintiff by the other party to the contract. The answer did not allege that the agreement was made in compromise of the ejectment suit, but defendant claimed such to be the case. Held, on appeal from a judgment for plaintiff, that defendant should be granted leave to amend his answer so as to set up the compromise.</p>

—Hon. H. H. Bolapp, Judge. Action to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. There is certainly a repugnancy between the constitutional provision stating that there shall be no limit of liability and the act of the Legislature restricting the recovery to five thousand dollars.

<p>Criminal Law: New Trial: Newly Discovered Evidence: Effect on Result.</p> <p>Where newly-discovered evidence alleged as a ground for a new trial authorized by Revised Statutes 1898, section 4952, subdivision 7, was cumulative and impeaching in character, and was not such as would probably change the result, the motion was properly denied.'</p>

— Hon. G. W. Morse, Judge. The defendant was convicted of murder in the first degree and sentence of death having been pronounced against him, he appealed. STATEMENT OF FACTS. The information in this ease,charges the defendant with the unlawful, deliberate, and malicious murder, on the 16th day of December, 1901, of James R. Hay. Among other things, it appears from the evidence that the accused and the deceased were both residents of Forest Dale, Salt Lake county, Utah.

— Hon. Thomas Marioneaux, Judge. Action to recover damag’es for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

' — How. S. W. Stewart, Judge; Action to recover damages for the death of plaintiffs ’ husband and father alleged to have been caused by tbe negligence of the defendant. From a judgment in favor of the plaintiffs, the defendant appealed. STATEMENT OF FACTS.

—lion. A. N. Cherry, Judge. Action by Seward H. Fields, trustee, and another to foreclose a trust deed executed by the Daisy Gold Mining- Company. The Salt Lake Hardware Company also commenced a snit against the mining company to foreclose its mechanic’s lien. The hardware company appeared in the action commenced by Fields and answered and set forth its claim by way of cross-complaint.

—Hon. Thomas Marioneaux, Judge. Action of divorce, instituted in Millard county, on the ground of the alleged adultery of the defendant charged in the complaint as having been committed in Piute county. From a judgment dismissing the action, the plaintiff appealed.

— Hon. Thomas Marioneaux, Judge. Action against the defendants, as trustees of the Alpine school district, to restrain them from permitting the public schoolhouse, the property of the district, to be used for public and private dances. From a judgment in favor of the defendants, the plaintiff appealed. STATEMENT OE FACTS.

— Hon. 8. W. Stewart, Judge. Action in claim and delivery to recover the possession of certain personal property. From a judgment in favor of the defendant, the plaintiff appealed. STATEMENT OE PACTS. On September 10, 1901, a.t Salt Lake City, Utah, defendant, who is a jeweler, entered into a contract with plaintiff, who is a showcase maker, for the purchase of certain articles to be used in defendant’s jewelry store.

— Hon. Jacob Johnson, Judge. Action to recover a certain sum alleged to be due ■ on an implied contract of indemnity. From a judgment in favor of the defendant, the plaintiff appealed.

District Court, Utah County.— Hon. Thomas Marioneaucc, Judge. Action to recover damages for personal injuries alleged to have heen caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

—Hon. G. H. Hart, Judge. Action on contract. From a judgment in favor of the plaintiff, both parties appealed. If it be admitted that the letters written by the defendants constituted a breach on their part, the plain- ' tiff had an election of three remedies: “The one who has- been injured has an election to pursue any one of three remedies.

-How. W. G.Ball, Judge. Action to obtain a permanent injunction against tbe. defendant railroad company to prevent tbe construction and operation… Held: in accord with the trend of modern decisions, that, where a street is unreasonably .obstructed by a street railway, pursuant to an or- - dinance attempting to grant the power, that if the obstruction is unreasonable, the grant is invalid, as being in excess of the powers of the council; and therefore sustained the remedy by…

— How. G. H. Hart, Judge. The opinion states the facts. From a judgment taxing the costs against the defendant, he appealed.

<p>Appeal from the Sixth District Court, Sevier County.— Ron. William M. McCarty, Judge.</p> <p>Action to quiet title to a water right. From the judgment, the plaintiff appealed.</p>

District Court, Carbon County. — How. Jacob Johnson, Judge. Action to enjoin defendants from taldng water from certain wells excavated by them and also from cutting off and diverting, by means of excavations, tbe water from an underground channel which supplied certain springs which formed a part of the source of supply of Grassy Trail creek. From a judgment in favor of the defendants, the plaintiff appealed.