Volume 27 — South Dakota Reports

<p>Appeal from Circuit Court, ’ Codington County. Hon. Gkorgü H. Marouis, Judge.</p> <p>Action by Helen S. Merrill against the Minneapolis & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Evidence held, to warrant the modification of a judgment of disbarment of an attorney.</p>

<p>Appeal from Circuit Court, Day County. Hon. Frank Mc-NuuTy, Judge.</p> <p>A. G. Paulson was convicted of embezzlement, and he appeals.</p>

<p>Petition to disbar G. P. Plarben.</p>

-Vppeal from Lawrence County Court. Hon. W. G. Ricu, Judge. Prohibition by the State, on the relation of J. D. Cain and others, against Daniel J. Toomey and others, members of the City Council, and' W. R. Irwin, City Auditor of the City of Spearfish. Froma judgment enying the writ, plaintiffs appeal, and defendants prosecute a cross-appeal.

Hon. W. G. Rice, Judge. Mary Plar'bour was convicted of manslaughter in the second degree, and from the judgment and order denying a new trial she appeals.

<p>Petition by William B. Shaw and others for a writ of prohibition against the Circuit Court of Hamlin County.</p>

Mandamus by the State, on relation of Samuel W. Clark, Attorney General, against the White River Valley Railway Company and another. On motion that the court accept a petition and bond for removal of the proceeding to the federal court and proceed no further in the matter.

Hon. W. G. Rice, Judge. Action by Joseph Chasse, as agent of the court in the estate of Mrs. Joseph (Adelaide) Chasse and others against the Bankers’ Reserve Fund Life Insurance Company, a corporation. Judgment directed for the plaintiffs, and defendant appeals.

<p>Appeal from Circuit Court, Brookings County. Hon. Geo. H. Marquis, Judge.</p> <p>Action by Jens E. Kjolseth against William Kjolseth. From a judgment for plaintiff, defendant appeals.</p>

<p>A complaint alleged that a fire set by defendant spread to premises owned by the plaintiff, and destroyed fencing, posts, a barn, lumber, cyclone cellar, two hog pens, six hogs, orchard and shrubbery, shade and forest trees, and machinery, specifying the value of each, making a total value of property destroyed of $2,000, and the following paragraph of the complaint alleged “that the plaintiff herein was the owner of the property so destroyed as hereinbefore stated, and that by reason of said defendant so setting said fire as hereinbefore stated, and so allowing the same to get beyond his control and spread and burn to the premises of the plaintiff,” he was “damaged in the sum of $2,000.” Held, that the specifications as to the value of the separate improvements destroyed, though unnecessary, were simply a description of the real property damaged, and that the paragraphs of the complaint read together stated a cause of action for damage or trespass to the buildings, fences, trees, etc., as part of the realty, and not as personalty separate from the land.</p> <p>While growing trees and improvements are generally a part of the realty on which they stand, the owner may, for a particular purpose, as in an action of trespass, treat them as personal property, and have an action for injury to them independently of the realty.</p> <p>Where grown timber has been destroyed or injured by a wrongful act, as by fire escaping from the premises of another, the owner has an action of trespass for injuries to the realty, and from the destruction or injury of .vines, fruit trees, and young growing timber, which have little or no appreciable value when severed from the realty, he has the same action.</p> <p>In an action of trespass for injury to personal property attached to the realty, the measure of damages is its intrinsic value as • detached and separated therefrom.</p> <p>In trespass to real and personal property which is injured or damaged by fire, and where the owner has elected by his pleading to bring an action for damages to the realty, the measure of damages is the difference in the value of the realty before and after the trespass.</p>

<p>Appeal' from Circuit Court, Spink County; Hon. Alva E. Taylor, Judge.</p> <p>Action by Peter Neilson against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Brown County. Hon. Frank McNurty, Judge.</p> <p>Action by William D. Hogan and another against George Bechtel. From a judgment for plaintiffs, defendant appeal's.</p>

<p>Since tlie trial court can correct -its judgment after entry, it may, after entry of judgment, correct its purported findings so as to make tliem conform to the real findings .made.</p> <p>Where, after a trial judge had signed purported findings on which judgment was entered, but which were not in fact the findings made, he became a member of the Supreme Court, the findings could be corrected by his successor.</p> <p>On a motion to correct findings on the ground that the findings signed were not the findings made, any satisfactory evidence, oral or written, tending to show the mistake may be considered; the court not being bound to limit the inquiry to some record or minute entry.</p> <p>On an application after judgment to correct the findings of fact to conform to those actually made, evidence held to show that a certain finding included in those signed by the judge, inconsistent with the others and with the judgment entered, was so included by mistake.</p>

Hon. Chas. S. Whiting, Judge. In the matter of the judicial settlement of the estate of John McClellan, deceased. Application by James S. McClellan for letters of administration on decedent’s estate as decedent’s son, in which the Attorney General, representing the State, intervened and contested the application, and, from an order denying the petition for McClellan’s appointment and refusing a new trial, he appeals. On motion by the State to dismiss the appeal.

<p>¿\ppeal from Circuit Court, Spink County. Hon. Alva E. Taylor, Judge.</p> <p>Action by the -Sioux Remedy Company against Neis Lindgren. Judgment for defendant. Plaintiff appeals.</p>

<p>As to inheritance and excise tax laws, the constitutional requirement of equality.and uniformity is satisfied, if there is equality and uniformity between the individuals constituting each class established by the law.</p> <p>The Legislature may make any classification of the recipients of inherited estates for taxation which it sees fit, and the courts may not interfere, provided there is the required equality and uniformity between the persons in the separate classes, and provided the classification is not based on a wholly arbitrary and unnatural plan.</p> <p>The method of progression from transmission of less to those of greater value provided by the inheritance tax law (Sess. Laws 1905, c. 54), whereby the higher rate of tax in case of transmission of a greater estate is levied upon the whole value of the property transmitted, rather than the increased rate applying only to the excess in value of property transmitted, over the amount subject to the next lower rate, is not in violation of Const, art. 6, § 17, requiring all taxation to be equal and uniform.</p> <p>Laws 1905, c. 54, establishing an inheritance tax, is not defective for failure to provide any method for its enforcement, since section 1 expressly creates a liability on the part of the recipient of the inheritance to pay the amount of the tax to the county treasurer, under which that officer could bring an Ordinary action- to collect for the use of the state.</p>

Plon. Devi McGee,, Judge. Action by Nellie H. Chapman against Daniel W. Greene and another. From a judgment for defendant S. J-osie Hill, and from an order denying a new trial, plaintiff appeals.

<p>Under Pen. Code, § 338, defining “adultery” as the voluntary sexual intercourse by a married person ’with one other than his or her spouse, and Pen. Code, § 325, as amended by Gen. Laws 1907, c. 11, § 1, defining “rape” as sexual intercourse with a female, not the wife of the ravisher, under the age of 18 years, a complaint which charged that the defendant, a male over 14 years, feloniously assaulted and ravished a female, not his wife, who was under the age of 18 years, did not charge adultery, but only rape; the intercourse charged being with a female incapable of consent.</p> <p>In a prosecution for statutory rape! other acts of intercourse than the one relied on in the indictment are admissible in evidence.</p> <p>Where the prosecuting attorney in a statutory rape case announced that he would rely on a certain act of intercourse for conviction, it was harmless error for the court to refuse motion to compel such election.</p> <p>In a prosecution for statutory rape, evidence of medical experts that in their opinion the prosecutrix had had sexual intercourse was admissible, as corroboration of the prosecutrix’s statements that defendant had had sexual intercourse with her.</p> <p>,In statutory rape case, where physicians had testified that in their opinion the prosecutrix had had sexual intercourse, evidence that the prosecutrix had been an inmate of a brothel and had visited places and persons where such intercourse could be had was properly excluded, even though offered to rebut the effect of the expert testimony.</p> <p>In the absence of any statutory requirement, a conviction for statutory rape may be had on the unsupported testimony of the prosecutrix.</p> <p>In a statutory rape case, the evidence of the prosecutrix held sufficiently corroborated to justify a verdict of guilty.</p> <p>In the absence of a bill of .exceptions showing the facts, error at the trial of a criminal case, in that the judge was absent from the courtroom for a time, during which the prosecuting attorney used improper argument to the jury, cannot be reviewed on appeal.</p> <p>Where the trial court struck out of a proposed bill of exceptions in a criminal case matters therein contained, on the ground that no objection or exception was taken at the trial as to those matters, the fact that the attorneys stipulated that the matter stricken out should be printed in the abstract in order to present the question for review whether objection and exception were necessary, which stipulation was inserted by the court in his certificate to the'bill of exceptions, will not make the matter stricken out a part of the bill of exceptions so as to warrant review of the error complained of on appeal.</p> <p>The burden of presenting a record clearly showing error is on the appellant, as every presumption is in favor of the judgment as to matters not shown in the record.</p> <p>Where the record in a criminal case fails to affirmatively show that it contains all that occurred at the trial relating to the alleged error, the appellate court will not review the point.</p> <p>The remedy for erroneous action of the trial judge in striking matter from a proposed bill of exceptions in a criminal case is by petition to the Supreme Court under Code Civ. Proc. § 298; and, in the absence of such application, it will be presumed that the order striking the matter out was properly made.</p>

Hon. Levi Me-GEE, Judge. Action by the Redwdter Land & Canal Company against John R. Jones. From a judgment for defendant and an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.</p> <p>Action by George Kerr, as trustee in bankruptcy of the estate of Le Roy W. Flower, against John A. Melum. From a judgment for plaintiff, defendant appeals.</p>

<p>Mistake which may be corrected by reformation must be mutual, and the reformation can only be made as to such matters as the parties at the time of execution of the instrument mutually intended to put into the writing and by reason of mistake, accident, or oversight failed to insert therein.</p> <p>Where a vendee made a payment on the purchase price and wrote out a receipt to the effect that the vendor had received a sum of money in part payment on a certain description of land, the vendee was not entitled to reformation of the receipt, so that it would include all the terms of the oral contract of sale, on the ground of mistake, where there was no evidence to show that the vendor intended to sign any other instrument than the receipt as it was at the time he signed it, and plaintiff’s testimony showed that he did not include the terms because he had not had sufficient experience in such line of business.</p> <p>Suits to reform instruments are predicated on the proposition that the court cannot make such a contract as the parties ought to have made or would have made if better informed, but the court merely makes the contract what the parties intended at the time of execution.</p>

<p>Appeal from Circuit Court, Hyde County. Hon. Lyman T. Boucher, Judge.</p> <p>Action by the Paul Book Company against W. M. Ringsdorf. From an adverse order, -plaintiff appeals.</p>

<p>In a suit to compel defendant to perform a contract to purchase real property, plaintiff must show a title which is free from all reasonable doubt.</p> <p>That a vendor offers a warranty deed does not require acceptance of the title by the purchaser without regard to the merits of the title.</p> <p>The Supreme Court cannot as a rule take judicial notice of the incorporation of municipalities of other states.</p> <p>The court may exercise a legal discretion in determining whether to grant specific performance of a contract to purchase land, depending upon the circumstances, and, where the vendor is not shown to have a satisfactory title, specific performance may be refused, though it is not shown that his title is bad.</p> <p>Evidence, in a suit to compel specific performance of an agreement to purchase land, held not to show a satisfactory title in plaintiff, so that specific performance was properly refused.</p>

<p>Appeal from Circuit Court, Lawrence County. Hon. WiEuam G. Rice, Judge.</p> <p>Action by the Fish & Hunter Company and another against the New England Homestake Company and others. From a judgment for plaintiff Frank S. Peck, and from an order denying a new trial, defendant Chris Godfrey appeals.</p>

<p>Charges in disbarment proceedings must be established by clear preponderance of the evidence.</p> <p>While courts may allow disbarment proceedings to be brought, based on charges of crimes not connected with accused’s professional duties or work, yet, in the absence of special circumstances, such charges will not be considered in advance of final disposition of criminal proceedings based on the same accusation.</p> <p>Proceedings to ¡disbar an attorney should not be instituted because of alleged acts of immorality unfitting the respondent to be a member of the bar, committed in the past, where for many years thereafter he lived an exemplary life.</p> <p>Pen. Code, § 63 3, defines extortion as the obtaining of property from another with his consent, induced by a wrongful use of force or fear. Section 634 declares that fear such as will constitute extortion may be induced by a threat, either to accuse another of any crime or to expose any secret affecting him, and section 638 declares that every person who, with intent to extort any money or property from another, sends any person any threatening letter shall be punished as if the money or property were actually obtained by means of such threat. Held, that the word “wrongful,” as used in section 633, relates solely to the method used; and a person may be guilty of extortion under such sections if he obtains money from another by unlawful means, though he does not seek to obtain any benefit for himself, and believes that the money or property obtained in fact belongs to the person for whom it is obtained; the term “extortion” being construed to mean “to obtain from a holder desired possessions or knowledge by force or compulsion; to wrest from another by force, menace, duress,” etc.</p> <p>Where an attorney for a deserted wife wrote letters to the husband implying that if he did not pay certain money and turn over certain property to the wife, and induce his paramour, with whom, it was claimed, he was living in another state in adultery, to secure the dismissal of certain civil proceedings on a note ■ given by the husband to such paramour, criminal proceedings would be instituted against them, and they would be extradited and tried, such acts constituted extortion within Pen. Code, §§ 633, 634, 638, without reference to the justness of the wife’s’ claim or the attorney’s intention, requiring the attorney’s suspension from practice.</p>

<p>Appeal from Circuit Court, Davison County. Hon. Prank B. Smith, Judge.</p> <p>Suit to quiet title by Dona Mick Hohn against Mary J. Bid-well and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Butte County. Hon. W. G. Rice, Judge.</p> <p>Action by George S. Wells against Maud B. Wells. From a judgment for defendant and an order denying a new trial, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Codington County. Hon. Geo. H. Marquis, Judge.</p> <p>Action by the Nichols & Shepard Company against Johannes Horstad and others. Judgment for defendants-, and plaintiff appeals.</p>

.Appeal from Circuit Court, Jerauld County. Hon. Eranic B. Smith, Judge. Action by Albert N. Louder against E. E. Hunter. From a decree for plaintiff, defendant appeals. The action is one to set aside a conveyance and when the court set aside the -conveyance it granted all the relief plaintiff was entitled to in this action. Oppenlieimer v. Collins, 60 L. R. A. 406.

Hon. Lyman T. Boucher, Trial Judge. Action by Andrew N. Van Camp against Robert Weber and others. From a judgment for plaintiff, and from an order denying a new trial, defendant Lambert Rezac appeals.

Hon. J. H. BoTTum, Judge. Action by John C. Perkins against Roberts County, South Dakota, wherein Andrew Marvick and another intervened. Erom an order rejecting and refusing to confirm the report of a referee, plaintiff appeals. The statute providing that -the court or the referee must file his report .within a certain limited time is merely directory, and failure to file within that time will not invalidate the report or a judgment founded thereon.

Hon. GeorgB H. Marquis, Judge. Action by Thomas Cassidy and others against Mary Holland. Judgment for defendant, and plaintiffs appeal. Section 923 of the Civil Code provides that “a grant duly executed is presumed to have been delivered at its date.” A deed will 'be held to have been delivered where it was duly acknowledged, in the absence of evidence to the contrary.

<p>Appeal from Circuit Court, Union County. Hon. J. W. Jones, Judge.</p> <p>Action by Paxton-Eckman Chemical Company against Marvid Carlson. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Lawrence County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Donald A. McPherson against Joseph Swift and another. Judgment for plaintiff, and defendants appeal.</p>

Hon. Eranic B. Smith, Judge. Certiorari by the State, on the relation of E. W. Cormick, against S. A. Ramsey and others. From an order granting a motion to set the writ aside, and a judgment dismissing the proceeding and awarding costs, plaintiff appeals.

Hon. Frank McNulty, Judge. John De Marias was convicted of statutory rape, and’ he appeals.

<p>Appeal from Circuit Court, Brown County. Hon. Frank McNulty, Judge.</p> <p>Action by Charles Valentine against G. A. Gilborne and another. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

Hon. Erank McNulty, Judge. Action by A. Sherin against George H. Eastwood and another. Judgment for defendants, and plaintiff appeals. An article is slanderous per se that charges that an attorney had received a public whipping at the hands of a woman, and that he had brought it about because of alleged insults and slanders offered to the woman who had been a former client.

Hon. George H. Marquis, Judge. Action by J. K. Gorman against P. PI. Madden and another. From a judgment for plaintiff, and from an order denying a new trial, -defendants appeal.

<p>Where a divorce is granted for an offense of the husband, the court is authorized, by Civ. Code, §§ 92, 93, to compel him to provide for the maintenance of the children of the marriage and to make suitable allowance to the wife for her support during her life, or for a shorter period, as the court deems just, having regard to the circumstances of the parties, require security for providing maintenance, or making the payments required, and may enforce the same by the appointment of a receiver, os by any other remedy applicable to the case.</p> <p>All orders and decrees touching alimony and maintenance of a wife, in an action by her for divorce, are subject to revision on appeal in all particulars, including those which are within the discretion of the trial court.</p> <p>Where defendant persistently refused to provide for his wife’s necessities pending an action for divorce, and failed to comply promptly with an order awarding temporary alimony, and refused the wife’s offer to accept $4,000 in full for her share of their jointly accumulated property, the court did not err in awarding her a lump sum as permanent alimony, and in providing for an execution against defendant’s property to satisfy the decree, instead of providing for the payment of monthly or quarterly payments.</p> <p>Plaintiff and. defendant were married in 1871, and at the time of divorce plaintiff was 49 and defendant 53 years of age. All of their eight living children had attained majority, except two; one being awarded to each of the parties. After marriage, plaintiff received $2,800 from her father’s estate, which she turned over to defendant, and which was used by him in accumulating his property. He owned real and personal property worth $15,000, and his debts aggregated $2,400. His property consisted of 360 acres of land, on 200 acres of which there was a purchase-money incumbrance of $1,700. Held, that a decree awarding plaintiff as permanent alimony $6,300 was excessive, and should be reduced to $5,000.</p>

<p>Appeal from Circuit Court, Davison County. Hon. Frank; B. Smith, Judge.</p> <p>Action by Frank Redford and another against Frank Weller. Judgment for plaintiffs, and defendant appeals.</p>

Hon. R. B. Tripp, Presiding Judge. In the matter of the Sorenson Drainage Ditch.. The appeal therein of John Takings from an order of the board of county commissioners to' the circuit court was dismissed, and he appeals.

Hon. W. G. Rice, Judge. Action ¡by Kirk G. Phillips and 'others against the Branch Mint Mining & Milling Company and others, in which James D. Hardin filed a cross-complaint. From an order modifying a judgment of cross-complaint on the application of defendant, the Union Trust Company of Philadelphia, -he appeals.

<p>Appeal from Circuit Court, Minnehaha County. Plon. Joseph W. Jones, Judge.</p> <p>Action by Mary Peters against Gust Kiriaked.es and another as copartners. Judgment for plaintiff. Defendant Kirakedes appeals.</p>

<p>Where a juror and the plaintiff, for whom verdict was rendered, were drinking together in a saloon during a recess of the court, in direct violation of the express order of the court, and were conversing concerning the trial then in progress, it was misconduct, and ground for a new trial.</p>

Joseph W. Jones, Judge. Action by John A. Loughlin against A. B. Larson, in which W. H. Fulmer and others, copartners as Coleman Implement Company, and C. E- Plendrickson and others, copartners as Hendrickson & Cone, intervene. From- a judgment for plaintiff, interveners appeal.

<p>Appeal from Circuit Court, Roberts County. Hon. Frank McNuuty, Judge.</p> <p>Alike Alead was convicted of an assault with a dangerous weapon, and appeals.</p>

<p>Pol. Code, § 938, provides that the state’s attorney shall not receive any fee from any prosecutor for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney for either party other than for the state or county in any civil action depending on some state of facts upon which the criminal prosecution commenced but undetermined shall depend. An Attorney General during the pendency of a prosecution for grand larceny of horses commenced an action in favor of the owners of such horses' against defendant in the criminal proceeding to recover damages as for a conversion of the horses, but withdrew from the ciivl case before trial and judgment, and received no compensation for his services therein, and testified that, when he commenced the civil action, it was his opinion that the only question, involved therein would be the amount of damages by plaintiff, and that evidence tending to prove the larceny would not be necessary. Held, that such Attorney General was not subject to disbarment as an attorney as for a violation of such statute.</p> <p>Laws 1907, e. 200, § 1, provides that, whenever any complaint is laid before a justice of the peace that a- criminal offense has been committed, such justice shall issue subpoena requiring all persons to attend before him at a time and place named to submit to examination concerning the offense charged. It appeared that it was the uniform practice of an Attorney General, whenever a complaint was made before him of the commission of a crime, to cause an examination to be had under this statute, the proceedings in each case being entitled, “The State of South Dakota v. John Doe,” a subpoena being issued for the appearance of the alleged offender. After examination of a person accused of having obtained money under false pretenses, the prosecuting witness sought to employ the Attorney General to bring a civil action to recover the money, but the latter declined to bring the action, and referred the prosecutor to an attorney occupying the same office with the Attorney General and receiving a monthly salary from him, and prosecutor employed such attorney and the civil action was brought by him. No criminal prosecution resulted from the examination, and the Attorney General took no part in the prosecution of the civil action, and received no compensation therefrom. Held, that the. Attorney General was not subject to disbarment as for misconduct, in the absence of evidence of improper motives on his part in the conduct of such matter.</p> <p>Laws 1907, c. 200, §1, providing that, whenever a complaint is laid before a justice of the peace, police justice, or municipal judge that a criminal offense has been committed, after investigation of the same, such justice or judge shall issue subpoenas requiring any and all persons to attend before him at a time and place mentioned, and to submit to an examination concerning the violation of the law alleged, cannot be resorted to to obtain evidence for use in a civil •suit growing out of a transaction constituting a criminal offense.</p>

Hon. Frank B. Smith, Judge. Action by F. T. Underwood and others against S. M. Wake-field and others. From a judgment for plaintiff, defendants appeal. On order to show cause.

Hon. R. B. Tripp, Judge. Knud Knudson was convicted of obstructing a public officer in the discharge of his duties, and, his motion for new trial being overruled, he appeals.

<p>Amendments made in a respondent’s supplemental abstract, and not controverted by appellant, will be acepted as true.</p> <p>Plaintiff’s affidavit for attachment, after stating the amount and nature of his claim, was as follows: “That your affiant is informed and verily believes the same to be true; that defendant has departed from this state with intent to defraud his creditors,” etc. Plaintiff was a blind man, and in subsequent affidavits explained that he could not read and write, and had to accept the statements of others as to the amount of his claim. Held, that as the semicolon showed that the averments of information and belief had reference only to the amount of the claim, the affidavit was not insufficient in being made upon information and belief, without setting out the sources of the information and the grounds of belief.</p> <p>To establish a fraudulent intent warranting an attachment, the intent need not be shown by direct evidence, but may be gathered from the circumstances, provided inferences of fraudulent intent are fairly warranted.</p> <p>Under Code Civ. Proc. § 207, subsec.. 5, providing that an attachment may be issued upon an affidavit that a defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with intent to defraud his creditors, proof of any one of the grounds mentioned is sufficient to support an attachment.</p> <p>Upon a motion to dissolve an attachment as improvidently granted, evidence held to show that the defendant assigned or disposed of his property, with intent to defraud his creditors.</p> <p>•Claims by a defendant, who appealed from an order refusing to dissolve an attachment, that the attachment bond was insufficient will not be considered on appeal, when not referred to or discussed in bis brief.</p>

<p>Where an amendment to the complaint was not oí itself improper, and the action was tried on proper issues without objection at the trial, the error in allowing the amendment because made by the court having no jurisdiction was not prejudicial to defendant.</p> <p>Assignments on ruling on evidence that the court erred in overruling the objections to questions set out, without stating the grounds of objections or the answers to the questions, and without referring to the page or folio of the abstract, or the record where the questions, objections, or answers may be found, will not be reviewed on appeal.</p> <p>The overruling of a motion for a directed verdict on the ground that the testimony is insufficient to warrant a verdict against defendant made at the close of all the evidence without any specification of the particulars in which the evidence is insufficient, is not reviewable.</p> <p>A charge, though not reviewable on appeal, because not excepted to, may be looked to by the court on appeal to ascertain the precise issues submitted to the jury as the foundation of plaintiff’s right to recover.</p> <p>A verdict on conflicting evidence will not be disturbed on appeal.</p> <p>Where in an action for injuries to a servant caused by the negligence of a coservant, authorized by the employe in charge of the work under the authority of the master to direct the work for the employe when absent, the court’s charge that the employe had authority to designate the coservant to act for him in his absence was not excepted to, the sufficiency of the evidence to show that the employe had such authority, challenged on motion for new trial for the insufficiency of the evidence, could not be considered on appeal; the charge being the law of the case.</p> <p>On motion for new trial for insufficiency of the evidence, the law, as stated in the instructions not excepted to, is the law of the case, and the sufficiency of the evidence can only be tested by such instructions whether they are right or wrong, while, on a motion for a directed verdict with proper specifications as to the insufficiency of the evidence, the correct rule of law must necessarily be applied in testing the sufficiency of the evidence.</p>

<p>Where the specifications of the particulars 'wherein the evidence is alleged to he insufficient to justify a finding of the trial court do not allude to the items alleged to render the finding invalid, it will not he reversed.</p> <p>Where no objection as to items claimed to render a tax title invalid was presented to the trial court, its finding that the taxes for.which the land was sold were legal will not be disturbed.</p> <p>Under Sess. Laws 1891, c. 14, § 118 (Pol. Code, § 2208), permitting redemption from a tax sale within two years after the sale, or at any time within two years after the date of such sale, or at any time before the execution of the county treasurer’s deed, by paying the county treasurer for the use of the purchaser, etc. a tender, although not accepted, will work a redemption.</p> <p>There is, accurately speaking, no action at law or in equity to redeem from a tax sale, and, though an action may be required after payment or tender to recover possession or quiet title, the issue is whether a redemption has taken place, and not whether the party is entitled to redeem; and, in the absence of agreement, the right of redemption does not exist except as prescribed by statute, and can be exercised only as the statute prescribes.</p> <p>Statutes allowing the owner of land sold for taxes to redeem on prescribed conditions are liberally construed in favor of the redemptioner.</p> <p>Where plaintiff in an action to redeem from a tax sale had only an interest acquired by quit-claim deed dated nearly eight years after the land was sold for taxes, and after the defendants had paid or redeemed from all taxes thereon for eight years, and had made-permanent improvements upon the property and substantially increased the value of the land, and plaintiff had constructive, if not actual, notice of these conditions, he is not in a position to invoke the exercise of unusual liberality in the construction of the statute.</p> <p>Plaintiff, in an action to redeem from a tax sale, established a right of recovery for the use and occupation of the premises, but defendant established the principal issue as to title both in this-court and in the trial court. Held, that a judgment allowing costs to the plaintiff would be modified by not allowing costs to either party.</p>

Hon. Frank B. Smith, Judge. Action by C. J. Bliss against W. E. Waterbury. From a judgment for-plaintiff, and from an order denying a new trial, defendant appeals.

<p>Laws 1909, e. 129, providing for refunding by counties of moneys paid upon void tax sales, with interest, and reciting that the act is intended to include all sales made since the repeal in 1903 of Sess. Laws 1893, c. 161, does not permit refunding on sales made before 1903.</p>

Hon. R. B. Tripp, Judge. Action by Louis Chladek against Frank Van Wagenen. From an order sustaining- plaintiff’s motion to- dismiss the action without prejudice after a verdict against him, defendant appeal's. A verdict of a jury for defendant, though the court omit to render judgment on it, may be pleaded in bar of another action on the same cause. Kane v. Dulex, 3 E. D. Smith, 127.

<p>A general demurrer should not be sustained to a complaint in an action on an appeal bond, where the undertaking as to costs upon dismissal is valid, and the plaintiff is entitled to certain nominal relief, though the complaint 'claims much greater relief.</p>

Hon. Joseph W. Jonrs, Judge. Action by the Sioux Falls Light &■ Power Company againsr E. W. Coughran to condemn property for a public use. From a judgment for plaintiff and awarding nominal damages to defendant, he appeals. Respondent is not such a corporation as may invoke condemnation proceedings. Its relation to the public is not of such a character.

<p>Appeal from Circuit Court, McCook County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Ricklef Lunschen against William Barnhart and another. Judgment for defendants, and plaintiff appeals.</p>

<p>An agreement to receive a less amount than the sum claimed to be due cannot be the basis for an accord and satisfaction.</p> <p>An accord must be founded on a valuable consideration, and a debtor, xiaying the exact amount which he concedes to be due, the creditor claiming a greater sum, gives no consideration.</p> <p>Where, in an action involving the issue whether defendant was indebted to plaintiff in a specified sum for wheat bought, or was indebted only in a less sum, which defendant had paid, the evidence merely showed a dispute between the parties as to the amount due, and that defendant gave a check for the amount he conceded .was due, without any agreement to receive the check in full settlement, an instruction submitting the issue of accord and satisfaction was erroneous, necessitating the setting aside of a verdict for defendant.</p> <p>A creditor, who receives in payment a check for a less sum than is claimed to be due, and who indorses the check, which does not purport to be in full payment for the creditor’s claim, does not thereby bind himself to receive the proceeds of the check in full settlement of his claim, within Rev. Civ. Code, § 1180, providing that part performance of an obligation, when accepted by the creditor in writing in satisfaction, extinguishes the obligation.</p>

<p>A tax deed is fair on its face, and sets running the three-year statute of limitations (Pol. Code, § 2214), where no jurisdictional step is shown to be defective.</p> <p>A tax -deed is valid which shows a sale at the county treasurer’s office in the courthouse, as authorized by Laws 1891, c. 14, § 105, requiring a tax sale to take place, at the courthouse, or at the county treasurer’s office, etc.</p> <p>A tax deed is not void, because not made immediately after expiration of the period of redemption.</p>

<p>Appeal from Circuit Court, Stanley County. Hon. Lyman T. Boucher, Judge.</p> <p>Quo warranto by the State of South Dakota and John H. Fox against James E. Gray and Element L. Tomsik. Judgment •on the complaint ,and defendants appeal.</p>

Hon. Joseph W. Jones, Judge. Action by the Western Surety Company against Myrtle Kelley and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. When the prisoner is re-arrested or ordered into custody on the same charge or for the same offense his sureties are discharged. 5 Cyc. 117; State v. Posy, 79 Ala. 45.

<p>Appeal from Circuit Court, Lawrence County. Hon. W. G. Riot, Judge.</p> <p>Action by Joseph C. Spencer against William H. Lyman. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal •from Circuit Court, McPherson County. Hon. J. H. Bottom, Judge.</p> <p>Action by Gottfred G. AYerre against the Northwest Thresher</p> <p>Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Defendant, a real estate agent, contracted with plaintiff, also a real estate agent, to pay plaintiff $1.25 per acre, or one-half of all commissions made by defendant on all lands sold to purchasers brought to defendant’s office by plaintiff, such commissions to be paid to plaintiff as soon as defendant should receive his commission from such sales, and that plaintiff would bring all his land buyers to defendant. Held that, under the contract, plaintiff’s right to compensation was not limited to sales in which commissions were actually paid in money and received by defendant, but if a sale were made by defendant, so that commissions could not be collected on the sale, plaintiff would be entitled to compensation at the rate of $1.25 per acre on the land sold, and was entitled to such compensation under the contract where defendant himself purchased land of a third person, and subsequently entered into a binding contract for sale thereof with a purchaser furnished by plaintiff.</p> <p>Plaintiff and defendant were not engaged in a joint enterprise under the contract, though, while there was a mutual contract, each party in its performance acted independently of the other, plaintiff when he had secured and turned over to defendant all his purchasers of real estate having complied with his contract, and having no responsibility in the matter of accomplishing sales which were to be made by defendant.</p> <p>Haney, J., dissenting.</p>

<p>A husband does not forfeit his homestead rights in the homestead, the legal title to which is in his wife’s name, by abandoning his family, unless the abandonment is wrongful.</p> <p>Where a wife wrongfully abandoned by her husband dies without conveying real property, the legal title to which the husband placed in her, the husband succeeds under the statute of descent to a third of the property,</p> <p>Pol. Code, § 3217, requiring the spouse to join in the execution of a deed to a homestead, does not confer on the spouse any estate in the land, but merely burdens it with a condition by virtue of which the owner may not make a valid deed without the spouse joining therein.</p> <p>To create an estoppel, there must have been some act or conduct by the party to be estopped which has in some manner misled the party in whose favor the estoppel is sought, and has caused him to part with something of value or do some other act relying on the conduct of the party to be estopped, creating a condition making it inequitable to allow the guilty party to claim what would otherwise be his legal rights.</p> <p>Where a wife, having the legal title to real property, conveyed the same to her children after the husband had wrongfully abandoned the family, and the children knew the facts, the husband was not estopped from asserting as against the children that the deed was invalid,_ and that he was under the statute entitled to a third of the property.</p> <p>Under Pol. Code, § 3217, declaring that a conveyance by the owner of the homestead is invalid unless the husband and wife, if the owner is married, and the husband and wife reside in the state, sign the same joint instrument, a deed executed by a wife of a homestead while wrongfully abandoned by her husband, who remains a resident of the state, is a nullity.</p> <p>Where a wife, who was wrongfully abandoned by her husband who had conveyed to her his homestead, entered on a government homestead and 'resided thereon, for the period required by the federal land laws to enable her to acquire title thereto, she thereby abandoned the homestead rights of the land conveyed by her husband.</p> <p>Where a husband, who conveyed to his wife his homestead, wrongfully abandoned her, and then entered other land as a government homestead, he abandoned all claims to the homestead conveyed to the wife, though he abandoned his claim to the government land.</p> <p>A wife abandoned by her husband left the homestead, the legal title to which was in her, and entered on a government homestead, and resided thereon for the time required by the federal land laws to acquire title. Thereafter she returned to the former homestead. Prior to that time, all the children of the parties were of full age. One or two of the adult children lived with her on the original homestead, and they carried on the place to the time of her death. Held, that the Supreme Court could not declare as a matter of law that the trial court erroneously finding that the wife did not abandon the original homestead by entering on government land would have found that the wife acquired homestead interests in the original homestead on her return thereto, and the case must be remanded for a new trial as a “family” being a collective body of persons living in one house under one head, it did not appear who was the head of the family after their return to the old homestead.</p>

<p>When the Supreme Court, on appeal from a judgment for defendant; rendered on conclusions of law on findings of fact in accordance with an agreed statement of facts, directed the trial court to amend its conclusions pf law and enter judgment for plaintiff, and defendant did not ask for any modification of the direction, nor for a rehearing, the trial court could not permit defendant to amend the answer', but must enter judgment as directed.</p> <p>The rule that, where the trial court receives evidence without objection, the pleading's will on appeal be presumed to have been amended, if necessary to conform to the proof and support the judgment, is specially applicable to a -case tried on an agreed statement of facts, and the Supreme Court will presume a pleading amended to conform to such statement of facts, to support the judgment rendered.</p> <p>The Supreme Court, on appeal from a judgment for defendant, rendered in a case tried on an agreed statement of facts, directed the trial court to amend its conclusions of law and render judgment for plaintiff. The trial court allowed defendant to amend its answer, but made no change in the findings of fact, and entered judgment for plaintiff, who did not appeal from the order allowing the amendment. Held, that the court, on defendant’s appeal from the judgment, could not grant him any relief based on the amendment, because it must be presumed that the Supreme Court on the prior appeal determined the cause on the facts found, and treated the pleading's as amended to conform thereto, or the failure of the-Supreme Court so to do must be chargeable to the failure of defendant on the former appeal to urge such matters.</p>

Hon. Frank B. SmiTi-i, Judge. Action by George E. Winter and another, William Winter’s executors, against John A. Johnson. From a judgment for plaintiffs and from an order denying a ,new trial, defendant appeals.

<p>On notice of appeal from a default judgment from an order denying defendant’s motion to dismiss, and from an order denying a motion to vacate the judgment, the appellate court is without authority to allow an amendment to the notice hy striking out the appeal from the judgment and from the order denying the moti'on to dismiss so as to leave tlie notice effectual as an appeal from tlie order denying tlie motion to vacate.</p> <p>Under the express provisions of Code Civ. Proc. §§ 461, 551, the court is without power to enlarge the time within which an appeal must he taken.</p> <p>A single notice of appeal from a default judgment, from an order denying a motion to dismiss, and from an order denying a motion to vacate the judgment will he dismissed for duplicity or misjoinder of appeals.</p>

Hon. J. H. BoTTum, Judge. Action by O. H. Jones against Roberts County.

<p>Appeal from Circuit Court, Pennington County. Hon. Levi McGKK. Judge.</p> <p>fiction by Charles R. Taylor against the White River Valley Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Meade County. Hon. Joséph W. JonjJS, Judge.</p> <p>Action by the Union National Bank of Columbus, Ohio, against Louis Mailloux and others. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.</p>

<p>Appeal from 'Circuit Court, Clark County. Hon. George H. Marquis, Judge.</p> <p>Action by William Mankey, administrator of Mary Mankey against H. L. Hoyt. From the judgment, plaintiff appeals.</p>

Hon. Joseph W. Jones, Judge. Action by Andrew Thompson against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Plaintiff used the water-board for a foothold, a purpose for which it was not intended. The dangerous method employed by plaintiff in reaching the guage was his own .choice and he assumed the risk of doing his work in a hazardous way.

<p>Appeal from Circuit Court, Hyde County. Hon. Hyman T. Boucher, Judge.</p> <p>Fred Cline was convicted of larceny, and he appeals.</p>

<p>Appeal from Circuit Court, Meade County. Hon. Joseph W. Jones, Judge.</p> <p>Action by the Commerce Trust Company against Louis Mailloux and others. From a judgment for plaintiff, defendants appeal.</p>

Hon. Frank McNulty, Judge. -Action by J. M. Aldrich against the Public Opinion Publishing Company, a corporation, and another. Judgment for plaintiff, and defendants serve notice of appeal. Motion by respondent to show cause -why the appeal should not be dismissed, and motion by appellants for leave to serve an undertaking.

<p>Appeal from Circuit Court, Hughes County. Hon. Hyman T Boucher, Judge.</p> <p>Action by John B. Vesey against U. P. Solberg and another. Judgment for plaintiff, and defendants appeal.</p>

Arva E. Tayror, Judge. Action by the Peter Mintener Lumber Company against Robert Harvey. Judgment for plaintiff for less than the relief demanded, and it appeals.

Hon Joseph.W-Jones, Judge. Action by Cleworth Whaley and others, infants, by Rufus Whaley, their guardian ad litem, against Felix Vidal and others. From a judgment for plaintiffs,' defendants appeal. Affirmed.

Hon. Joseph W. Jones, Judge. Action by Cleworth Whaley and others, infants, by Rufus Whaley, their guardian ad litem, against Felix Vidal and others. From a judgment for plaintiffs, defendants appeal.

Hon. Lyman T. Boucher, Judge. Suit by Joseph Weatherer and others against J. S. Herron and others, as County Commissioners of Potter County, and C. KC. Breene, as County Auditor. From an order denying plaintiffs, motion to amend their amended complaint, they appeal.