Volume 26 — Wyoming Reports

V. J. Tidball, Judge. Action -by The Board of Commissioners of Albany County and another against Bernard Featherstone, as the county treasurer and ex officio tax collector of the county, and another. Judgment for defendants and plaintiffs 'bring error. There is no warrant of law that a county is ever involved in the fiscal affairs of an irrigation’district; since it is a voluntary association of land owners for the irrigation of their property. (Sec. 829, Comp!

William C. MENTzer, Judge. Orren C. Babbitt was convicted of defacing election ballots and he brings error. The indictment is insufficient and fails to charge an offense under the laws of the State. Where the definition of an offense includes generic terms, it is not sufficient to charge the offense in the terms as in the definition, but it must state the species. (Archibold Crim.

V. J. Tid-ball, Judge. Action by Victor Beaumier against Herbert King. Judgment for plaintiff, and defendant (brings error. The evidence shows the existence of a partnership between the parties to this action and that defendant in error performed services for plaintiff in error to compensate certain losses in a partnership undertaking. The evidence fails to support the verdict and judgment as rendered, and the same should be vacated.

P. W. Metz, Judge. Action ty Goodrich and another against the Big Horn County Bank and another. From a judgment for defendants, plaintiffs appeal. Heard on motion to withdraw record for purpose of amendment. The court is without jurisdiction. Plaintiffs have moved for leave to withdraw the record and make amendments.

Winter, Judge. Habeas corpus proceedings by Cliff Leamore Rinch v. Faith Hannah Harden. From a judgment for respondent, plaintiff appeals.

W. Metz, Judge. Action by G. J. Garretson against H. C. Avery. Judgment for defendant, and plaintiff appeals. If one constructs a wire fence, it must be a lawful fence, as defined by Section 2578, Comp. Stats. 1910; and after so constructed, it must be maintained as a lawful fence, else the owner is liable for all damages to stock by reason thereof under Section 2588 Comp. Stats. 1910.

William C. MiíNTzsr, Judge. Action by Frank Beckstead, et al. v. First National Bank of Evanston, Wyoming, et al. Judgment for defendants, and plaintiffs bring error. The findings and judgment failed to' distinguish the position of the plaintiff bank from that of the Becksteads; the judgment should have provided that 'before the temporary injunction was dissolved, or the foreclosure permitted, defendant bank should liquidate the indebtedness due the plaintiff bank.

William C. MENTzer, Judge. Mandamus proceedings upon the relation of Ered W. Rehder against the Board of County Commissioners of Platte County and others. Writ refused and relator brings error. An inferior tribunal may be required to exercise its judgment or discharge its functions, but its judicial discretion cannot be controlled by mandamus. (Section 5055, Comp.' Stats. 1910.) County Commissioners have power to issue licenses.

P. W. Metz, Judge. Action by A. T. Allen against W. O. Lewis. From an order granting plaintiff a new trial, defendant appeals.

ORIGINAL proceedings for mandamus by the State of Wyoming, on the relation of Ernest C. Raymond against I. C. Jefferis, State Auritor of the State of Wyoming. Relator is the de jure judge of the Seventh Judicial District of Wyoming and entitled to the salary and perquisites thereof. A resignation of a public officer is not complete unless accepted and an appointee has qualified* to fill the vacancy.

E. C. Raymond, Judge. Action by John W. Chapman, as surviving partner of the co-partnership of -Meyer & Chapman, against First National Bank of Cody, et al. From a judgment for plaintiff, defendants appeal. Plaintiff and respondent failed to' prove that Meyer & Chapman were the owners of the note, which is an essential element of their case. (DeClark v. Bell, 10 Wyo. 1,-7, 38 Cyc. 2044.) The note had been endorsed,to John W. Chapman.

W. C. Mentzer, Judge. James Hunt, as executor of the last will and testament of Alice Hunt, deceased, applied to the State Engineer for a permit to divert and appropriate waters.

Charles E. Winter, Judge. Action by H. B. Miller as receiver of the Farmers State Bank of Bridger, M'ontana, a corporation, against Eugene Amoretti, Jr. Defendant demurred to the petition as amended, which was sustained, and thereupon the plaintiff excepted to the ruling and refusing to further plead, judgment was rendered and entered in favor of defendant. Plaintiff brings error.

Charles E. Winter, Judge. Action by H. B. Miller, as receiver of the Farmers’ State Bank of Bridger, Montana, a corporation, against Mrs. J. L. Palmer, nee Mrs. Marie Amoretti. From the court’s ruling in sustaining a demurrer to plaintiff’s amended petition and a judgment entered for defendant, plaintiff brings error. Briefs filed by counsel in this case were the same as were filed in Miller v. Amoretti, No. 900, reported in this volume.

Charles E. WINTER, Judge. ' Action for the foreclosure of a mortgage by I. L. Burch against Cora E. Graves and another. From a judgment for plaintiff which .included an allowance of interest and attorney’s fees after tender, defendants bring error. Plaintiffs in error offered to make payment before suit and were informed that they need not worry about payment, as mortgagee did not need the money.

<p>Appeal and Error — Record—Filing—Briefs—Dismissal.</p> <p>1. Where judgment was rendered January 30th, filed January 31st without any showing as to when it was entered, and the record, including the specifications of error filed April 4th, was certified to by the clerk of the district court on the following day, and by the district judge on April 9th, and filed in the Supreme Court on April 26th, the appeal cannot be dismissed on the ground that the record was not filed within time, the statute providing that if the district judge fails to grant a new trial within 20 days from the filing of specifications of error, the clerk of the district court shall transmit the record to the clerk of the Supreme Court, etc.</p> <p>2. \Vhere the record was filed in the Supreme Court April 25th, but appellant failed to file briefs within the 60 days required, and no action was taken upon an application for extension of time, the appeal will be dismissed for wafit of briefs; no briefs having 'been filed before the filing of motion to dismiss.</p>

<p>Error to District Court, Crook County, Hon. E. C. Raymond, Judge.</p> <p>Proceedings between the State of Wyoming and James R. Morgan. Prom an adverse judgment, Morgan brings error. Pleard on motion to dismiss proceedings in error.</p>

Ari’Ral from District Court, Washakie County, Hon. James H. Burgess, Judge. Action by Roger Culbertson, administrator of the estate of William D. Albee, deceased, against Frank S. Ainsworth, et al. From a judgment for’defendants, plaintiff appeals. Heard on motion to dismiss the appeal. The notice of appeal was served two days before the judgment was enteredthis was insufficient to confer appellate jurisdiction.

E. C. Raymond, Judge. Action by George -Merrill, et al., against the Rocky Mountain Cattle Company, et al., for specific performance of contract for the sale of real estate. Judgment for defendants and plaintiffs bring error. Other material facts are stated in the opinion.

William C. MlNTzlr, Judge. Action by the Wyoming Central Irrigation Co. against Nina A. Daporte to recover upon a contract for the delivery of water for irrigation, and the foreclosure of the contract. There was a judgment for defendant on a counter-claim and plaintiff brings error. Defendant’s cross-petition fails to state facts sufficient to constitute a cause of action.

James IT. Burgess, Judge. Action by John B. Kendrick against Patrick Healey, Jr., and Alexander ITealey, co-'partners doing business under the firm of ITealey Bros. Heard on'plaintiff’s motion to dismiss appeal and on defendant’s to withdraw record for amendment. The record contains the files and not certified copies of the journal entries, and fails to show when, if ever, the orders, verdict or judgment were entered on the journal.

William C. Mentzer, Judge. Action by Kate E. Peterson against the incorporated town' of Guernsey, Platte County, to recover the unearned portion of a license fee for the sale of intoxicating liquors. Erom a judgment of dismissal, plaintiff 'brings error. There was no cause shown for the revocation of the license; the discretion of the board to revoke a license is limited to causes stated by statute.

James H. Burgess, Judge. Action by Burley-Winter P'ottery Co. against Onken Bros. & West Co. There was a judgment for defendant and plaintiff appeals. Material facts are stated in the opinion.

William C. Mentzer, Judge. William L. Jones was convicted of larceny and brings error. The material facts are stated in the opinion.

ORIGINAL Proceedings in Mandamus on the relation of A. H. Marble against Robert D. Carey, Governor, and others comprising the State Board of Land Commissioners.

Ernest C. Raymond, Judge. Action hy R. S- Douglas against H. E. Wright & Co. to enjoin the foreclosure of a chattel mortgage by notice and sale. From a judgment granting a perpetual injunction, the defendant brings error.

Original Proceedings in prohibition by the State of Wyoming on the relation of John W. Leazenby against James B. True, State Engineer, to prevent defendant from conducting a hearing upon petition filed with him, to cancel a reservoir permit. Heard upon demurrer to the petition. This is an original proceeding for the writ of prohibition to prevent action 'by the State Engineer in conducting a hearing upon an application for the cancellation of a reservoir permit.

<p>Attorney and Client — Nonresident Attorneys Are Unauthorized to Sign Petitions in Error — Appeal and Error Motion to Dismiss Courts — Jurisdiction oe Subject Matter Not Acquired by Agreement — Petition and Error Will be Dismissed When Void.</p> <p>1. Nonresident attorneys may, under Comp. Stat. 1910, Sec. 966, be admitted ex gratia for purposes of a pending case in which they have been employed, but not as members of the Bar of the State, and the section does not authorize a nonresident attorney to sign a petition in error.</p> <p>2. A motion for extension of time to file briefs, made subject to a ruling on a motion to dismiss, filed the same day, did not waive the right to move for a dismissal.</p> <p>3. Jurisdiction of the subject matter of an action cannot be conferred by agreement.</p> <p>4. A petition in error signed by nonresident attorneys only, is a nullity, and will be dismissed upon motion.</p>

E. C. Raymond, Judge. Action by Theodore Bachmann against Nora D. Hurtt and others. From an adverse judgment, Wyoming Loan and Trust Co. appeals. The former owner of the land, Ida M. Powers, not being the head of a family, was not entitled to a homestead exemption (Const. Art XIX, Jones v. Losekamp, 19 Wyo. 83); the judgment of the Trust Co. became a lien upon the cancellation of the old mortgage, which lien was superior to the new mortgage, taken by the plaintiff Bachmann.

William C. Mentzer, Judge. Tony Konopisos was convicted of keeping a house of ill fame, and brings error.

P. W. Metz, Judge. Action by Henry A. Carstensen against Earl Brown to recover possession of lands involved in a disputed boundary. There was judgment for defendant and plaintiff appeals.

John R. ARNOLD, Judge. Plaintiff below did not present its claim to the administrator before suit; this is a pre-requisite to recovery by action (56x6 C. S-.; O’Keefe v. Foster, 5 Wyo. 343; Snyder v. State, 5 Wyo. 318); the petition does not allege such presentation nor disallowance; there is no presumption of rejection (O’Keefe v. Foster, supra,.Morse v. Steele, 26 Pac. 693; Pratt v. Hunt, 41 Pac. 12; Bank v. Charles, 24 Pac. 1019; Burke v. Maguire, 98 Pac. 21; Willis v.…

William C. Mentzer, Judge. Charles V. Loy was tried and convicted of murder in the first degree and brings error.

P. W. Metz, Judge. Action by the Stock Grower’s State Bank against L. A. Millard from an order discharging attachment and plaintiff appeals. The material facts are stated in the opinion.

E. C. Raymond, Judge. Action by Chas. F. McGinnis against J. A. Beatty. From a judgment for plaintiff, defendant appeals. Fleard on motion to dismiss.

V. J. Tidball, Judge. In the matter of the estate of Willard Cadwell, deceased, wherein C. L. Moralee, and M. M. Moralee, also William P. Cadwell, filed petitions for distribution of the estate. Held: that an adopted child could inherit collaterally a share that would have descended to her adopting mother.

V. J. Tidball, Judge. Suit by 'Chris C. Richards against John W. Richards and others for the dissolution of a co-partnership, a determination of the interests of the respective partners and. an accounting. There was a decree for plaintiff and defendants bring error.

E. C. Raymond, Judge. Action 'by James M. Fast and others against F.' A. Whitney and another to enjoin lessors from asserting a forfeiture of an oil lease and interfering with drilling operations of lessees. There was a judgment for defendants and plaintiffs appeal.

P. W. Metz, Judge. Action by W. W. Murphy against the W. & W. Live Stock Company to recover a broker’s commission for negotiating a sale of property. There was a verdict and judgment for defendant and plaintiff brings error. The action was for a recovery of a broker’s commission for finding a purchaser for lands and livestock;, the véndor is entitled to reasonable time to investigate the financial standing of an intended purchaser (Smith v. Penn, 151 Ill.

Court, Weston County; -Hon. E. C. Raymond, Judge. Action between the Robinson Merc. Co. and Reaman Davis and others. There was a judgment in favor of the Upton Dumber and Hardware Co. and the Robinson Merc. Co., brings error.

<p>Appeal and Error — Requirements op Record — Words and Phrases.</p> <p>1. A “Record on appeal” under the statute requiring such record to be filed within 70 days after judgment, includes a transcript of the evidence when necessary, with the original pleading, motions, etc., attached together, paged, and numbered consecutively and certified to by the Judge and Clerk as true and correct.</p>

ArPEAE from the District Court,'Big Plorn County; Hon. P. W. Metz, Judge. Heard on motion for leave to withdraw the record for purposes of amendment. (See former opinion, 26 Wyo. 42, 174 Pac. 191, 26 Wyo. —, 177 Pac. 134.)

William C. Mentzer, Judge. Action for the enforcement of a mechanic’s lien by the Cheyenne Brick Co. and others, Frank A. Roedel and others, and the Grier Lumber Co. and others, against Walter O. Phelan and wife. The three cases were consolidated for trial by stipulation of counsel; there were judgments for plaintiffs in each case and defendants bring error. The material facts are stated in the opinion.

Charles E. Winter, Judge. Action by A. J. Mokler, against E. P. Rohrbaugh, Mayor of Town of Casper, now City of Casper, and others. There was a decree for plaintiff and defendants bring error. The court erred in admitting opinion evidence as to the necessity, condition or width of a street (5 Ency. Ev. 681).

Chas. E. Winter, Judge. Action by Nina A. LaPorte, upon a cost bond, against the Wyoming Central Irrigation Co. and the National Surety Co. There was a judgment for plaintiff and defendants bring error. A judgment creditor is not entitled to interest on that part of his judgment which covers the costs (0'’Donnell v. Co., 48 N. W. 880; McManus v. Burrows, 177 S. W. 671; Baum v. Reed, 74 Pa. 320;- Ashworth v. Trammell, 47 S. E. ion; De Lizardi v. Hardaway, 8 Rob.

C. H. ParmelEE, Judge. Action by George W. Perry, as guardian of Dott Case, a minor, against Samuel I. and Bertha K. Gilpatrick and others. There was a judgment for plaintiff and defendants first named bring error. There was a motion filed to strike the bill of exceptions which was heard in connection with the hearing on the merits.