Volume 27 — Utah Reports

<p>Criminal Law: New Trial: Newly Discovered Evidence.</p> <p>Where newly discovered evidence alleged as a ground for a new trial established that the witness who gave the strongest evidence against defendant was mistaken in a material matter, or that his testimony was untrue, and in a counter affidavit such witness acknowledged that he had been mistaken in the particular alleged, and the evidence of defendant’s guilt was unsatisfactory, it was error to deny a new trial.</p>

—Tlon. John E. Booth, Judge. Action by Matthew Cullen against Harry Harris and others. Judgment was entered for the plaintiff, and from an order denying his motion to correct the judgment, the plaintiff appealed.

<p>Homicide: Newly Discovered Evidence: Identity of Accused: Changing Testimony: New Trial.</p> <p>Where, in a prosecution for murder, two principal witnesses as to the identity of accused, without whose 'evidence a conviction would have been doubtful, make affidavit, without any undue influence to induce them to change their testimony, that they were mistaken in the identity of accused, and, having been shown photographs of another person, were convinced he was the person whom they saw, -and accused’s co-defendant makes affidavit that accused was in no manner connected with the killing, such affidavits present such newly discovered evidence as warrants a new trial.1</p>

— Hon. Charles W. Morse, Judge. The defendant was convicted of the crime of an attempt to commit a felony, and appealed. Indictments and informations for attempts to commit crimes must aver the intent and the overt act constituting the attempt. Third Enc. Pleading and Practice, p. 98; State v. Frazier, 53 Kan. 87; Com. v. Cunningham, 88 Ya. 37; Com. v. Christian, 23 Grat.

— Now. C. W. Morse, Judge. The defendant was convicted of murder and from a judgment denying a second motion for a new trial and from an order refusing his application for a certificate of probable cause, he appealed.

— Ho». IF. G. Hall, Judge. Action to foreclose a certain trust deed upon certain real estate situated in Tooele county given to secure two promissory notes by their terms payable in Salt Lake City, Utah. Prom a judgment in favor of the plaintiff, the defendants appealed. A mortgage does not affect a transfer of title, but merely creates a lien upon the property.

— Hon. Charles W. Morse, Judge. The defendant was convicted of the crime of grand larceny and appealed. The unexplained possession by one person of goods belonging to another is not of itself evidence that a larceny has been committed; and before any inference can be drawn from the evidence of such possession it must be proved that the goods in question had been stolen. 18 Am. and Eng.

—Hon. H. H. Rolapp, Judge. Action to Pave decreed fraudulent and void a certain chattel mortgage executed to tbe defendant bank by Shirley P. Ash, since deceased, on certain goods, wares and merchandise. From a judgment sustaining defendants’ demurrer to the complaint, the plaintiffs appealed.

— Row. John E. Booth, Judge. Action on a bond to recover damages awarded by arbitration. From a judgment in favor of the plaintiff, the defendants appealed. An award must decide all the matters submitted,, if it does not it is void in toto. The arbitrators have no power to decide any matter unless they decide all. If they stop short and omit any the power fails; and also the consideration on which the parties entered into the contract of submission.

— Hon. Samuel W. Stewart, Judge. Action to recover the value of certain goods which the plaintiff claimed the sheriff wrongfully converted to his own use and to recover damages for such conversion. From a judgment in favor of the plaintiff, the defendant appealed.

— Hon. Samuel W. Stewart, Judge. Action for the purpose of appointing a receiver. From a judgment in favor of the defendant, the plaintiff appealed. STATEMENT OE PACTS.

—Eon. C. E. Eart, Judge. Action to restrain defendant from selling cigars under a certain trade name or mark and for damages. From a judgment in favor of the plaintiff, the defendant appealed.

— Hon. G. H. Hart, Judge. Action to recover damages for tlie death, of plaintiff’s son alleged to have been caused by the negligence of defendant. From a judgment m favor of the plaintiff, the defendant appealed. Under the facts, the plaintiff’s son was of course a trespasser, to whom the railroad company owed no positive duty and would only he liable for a wanton, willful or intentional injury. Ill. Cent. R. R. v. King, 179 Ill. 91, 70 Am.

— How. C. H. Hart, Judge. The defendant was convicted of murder in the second degree and sentenced to life imprisonment. From the judgment of imprisonment, he appealed.

<p>1. Mines and Mining: State and Federal Laws: Adverse Claims.</p> <p>In an action to determine tlie right of possession of a lode and mining claim,'arising out of proceedings had in the United States land office, state statutes regulating generally actions for the recovery of real property, or questioning the title thereto, have no application, in view of the provisions of Revised Statutes, United States, 2326 (U. S. Comp. St. 1901, p. 1430), relating to mining, and providing for the filing of adverse claims.</p> <p>2. Same: Presumption.</p> <p>Where no claim adverse to a mining claim sought to be patented under the mining laws of the United States is filed in the time limited by Revised Statutes, United States, section 2325 (U. S.- Comp. St. 1901, p. 1429), it will be conclusively presumed that the applicant is entitled to a patent, and that no adverse ■ claim exists.1 HALL, District Judge, dissenting.</p>

— Eon. W.C. Hall, Judge. Action to quiet plaintiff ’s alleged title to certain water. From a judgment in favor of the plaintiff, the defendant appealed. The evidence shows that he stood by and made no objection when the respondent first began its work upon the spring.

—Hon. J. E. Booth, Judge. Action to recover damages alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE EACTS. The plaintiff brought this action to recover damages for personal injuries which he alleges he received through the negligence of the defendant.

<p>Appeal from the Second District Court, Morgan County. — How. T. Marioneaux, Judge.</p>

— Hon. J. EL Booth, Judge. Action to condemn a right of way in a ditch owned by the defendants. From a judgment in favor- of the plaintiff, the defendants appealed. STATEMENT OE TACTS. Plaintiff brought this action to condemn a right of way in a ditch owned by the defendants.

— Ron. T. Marioneaux, Judge. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. Prom a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS. This is an action to recover for personal injuries to plaintiff, alleged to have been caused by the negligence of the defendant while the plaintiff, as an employee of the defendant, was engaged as a miner in defendant’s mine.

— Hon. Jacob Johnson, Judge. Action against tbe defendant corporation to recover damages for its failure to deliver tbe quantity of water to wbicb tbe plaintiff claims be was entitled as a stock-bolder. From a judgment in favor of tbe defendant, tbe plaintiff appealed. STATEMENT OP PACTS.

— Hón. H. H. Bolapp, Judge. Action to recover a certain sum of money under tbe facts as stated in tbe opinion. From a judgment in favor of tbe defendants, tbe plaintiff appealed.

— Now. 8. W. S teto art, Judge. Mandamus to compel the defendant to turn over to plaintiff the records held by said defendant under a claim of right as Justice of the Peace in and for Salt Lake City. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE FACTS. J. 0. Nystrom brought this action in his official capacity as clerk of the city court of Salt Lake City, which office and court were created by chapter 109, p. 110, Sess. Laws 1901.

— Ho». G. W. Morse, Judge. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

— Hon. W. G. Hall, Judge. Action to quiet title to certain reservoir sites. From a judgment in favor of the defendants, the plaintiffs appealed. STATEMENT OE FACTS.

— Hon. J. E. Booth, Judge. Action to foreclose a trust deed on real estate. From a judgment in favor of the plaintiff, the defendants appealed.

— How. II. H. Rolapp, Judge. Action to restrain the defendant from interfering with a certain pipe line owned by the plaintiff company and with the water flowing through it to the plaintiff’s premises. From a judgment in favor of the plaintiff, the defendant appealed.

—Hon. H. H. Rolapp, Judge. Action on a draft. From a judgment in favor of the plaintiff, the defendant appealed. That the forgery was committed by a person having the same name as the genuine payee malms no difference. It is the signature of the genuine person that transfers the title. The mere fact that another person may have the same name gives him no power to make the transfer and the signature of such a person is just as much a forgery as if the names had been different.

— Ho». 8. W. Stewart, Judge. Action for money had and received. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS. Plaintiff brought this action to recover from defendant the sum of $603.75.

— Now. II. H. Rolapp, Judge. Action for the price of goods sold. From a judgment in favor of the plaintiff for less than the relief demanded, the plaintiff appealed.

— No». S. W. Stewart, Judge. Application for a writ of mandate against the State Board of Land Commissioners to compel said board to award to plaintiff the preference right to purchase a certain piece of land situated in Salt Lake County and also to award to and credit plaintiff with the value of certain improvements on the land. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE EAOTS.

—Eon. H. H. Rolapp, Judge. Application by the plaintiff for mandamus against the defendants, as officers of the Commercial National Bank of Ogden, to compel them to permit plaintiff to inspect the books, accounts and loans of the bank. From an order granting the writ after hearing, the defendants appealed,

— How. W. G. Hall, Judge. Action by H. L. A. Culmer against Salt Lake City to restrain tbe collection of a special tax. Another action, involving tbe same questions of law and practically tbe same questions of fact, was commenced against tbe City by tbe Utab Stove & Hardware Company. Tbe two cases were consolidated, tried and appealed together. From a judgment in favor of tbe plaintiffs, tbe defendant city appealed.

—Ron. W. M. McCarty, Judge. Action to recover on a stock subscription. The opinion states the facts. From a judgment in favor of the plaintiffs, the defendants, indicated, appealed.

Original. In pursuance of an order made by this court in the case of Morrison v. Snow, 26 Utah 247, 266, 'a citation was issued to A. E. Snow, W. H. Wilkins and J. M. Bowman requiring them to appear in this court and show cause why their licenses as attorneys at law should not be revoked for unprofessional conduct. STATEMENT OF FACTS.

— Hon. Jacob Johnson, Judge. Action for tbe conversion of certain building material. From a judgment in favor of tbe defendants, tbe plaintiff appealed.

— Hon. Jacob Johnson, Judge. The defendant was convicted of murder in the first degree and appealed. STATEMENT OE FACTS. The defendant was prosecuted for the murder of William Tibbitts, and convicted of that crime. From tbe evidence it appears, among other things, that the prisoner and the deceased were living in the La Sal mountains, as settlers, with houses about 15 miles apart.

— Hon. Thomas Marioneaux, Judge. Action to recover damages for death alleged to have been caused by the negligence of the defendants. From a judgment in favor of the plaintiffs against the railway company, it appealed. STATEMENT OE EAOTS. This action was brought by the heirs of John P. Smith to recover damages for his death, which, they claim, was caused through the negligence of the defendants.

<p>Prohibition: When Issued: Criminal Prosecution: Warrant: Procedure: Jurisdiction.</p> <p>A writ of prohibition will not issue to restrain criminal proceedings on the ground that Revised Statutes, section 4612, providing that when a complaint is made before a magistrate, charging a crime, the magistrate must examine the complainant under oath, and may also examine other persons, and take their depositions; and section 4615, providing that where a complaint is made by a person other than the county attorney, the complaint and other evidence taken by the magistrate must be submitted to the county attorney before a warrant issues — were not complied with; the decision of the question being within the jurisdiction of the trial court, and the accused’s remedy for an erroneous ruling being by appeal.</p>

— Hon. G. H. Hart, Judge. Action to foreclose a chattel mortgage given to secure a certain promissory note. From a judgment in favor of the plaintiff, the defendant appealed.

<p>Appeal: Time for Taking: Entry of Judgment: What Constitutes.</p> <p>Revised Statutes 1898, section S301, provides that an appeal may he taken within six months from the entry of the judgment appealed from. Judgment was entered on June 10th, and notice of appeal filed December 16th. On June 16th a written instrument, purporting to be a judgment, was signed by another judge than the one before whom the hearing was had, and was filed in the case. Held, that the appeal was too late, and would be dismissed.</p>

— Hon. C. W. Morse, Judge. Action to declare and enforce a trust upon moneys received on the sale of certain property alleged to be in the hands of respondent in favor of the appellants as creditors of one William A. Norton, deceased. From a judgment in favor of the defendant, the plaintiffs appealed. STATEMENT OE EACTS.

W. C. Hall, Judge. Petition by Charles Rufus Campbell praying for the distribution of a certain fund to the beneficiaries under the will of deceased. From a decree ordering distribution, Eleanor Campbell, executrix, appealed.

<p>Appeal from the First District Court, Cache County,— Hon. G. H. Hart, Judge.</p> <p>Action upon a hail bond. From a judgment in favor of the plaintiff, the defendants appealed.</p>

— Now. C. W. Morse, Judgp. Action for the recovery of certain sums of money paid as taxes, nnder protest, to the defendant, as treasurer of Salt Lake County, who, as such, had authority to collect the city taxes. From a judgment in favor of the plaintiff, the defendant appealed.

—Hon. G. W. Morse, Judge. Action to recover damages for personal injuries alleged to have been caused by tbe negligence of the defendant. Prom a judgment in favor of tbe plaintiff, tbe defendant appealed.

— Hon. C. W. Morse, Judge. ' Action to recover the price of goods sold. The opinion states the facts. From a justice’s judgment in favor of intervener, reversed on appeal to the District Court, the intervener appealed. So that chapter 67, Sess. Laws, 1901, is violative of the following recognized inherent right: (1) Deprives man of his liberty. (2) Deprives one of the right to acquire and possess property. (3) Deprives one of the right to dispose of his property.

— Hon. W. G. Hall, Judge. Action to have a certain loan declared fully paid and to cancel a certain bond, secured by mortgage, securing the same. From a judgment in favor of the plaintiffs, the defendant appealed. STATEMENT OE EACTS.

— Hon. Thomas Marioneaux, Judge. Action of trespass to recover for ores alleged to have been willfully and fraudulently extracted from plaintiff’s mine by the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

G. W. Morse, Judge. Action to recover damages alleged to have been occasioned by the negligence of the defendant city. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE EAOTS. This is an action for damages for personal injuries 'alleged to have been sustained by plaintiff by reason of falling upon the sidewalk of Park City.

— Hon. Chas. H. Hart, Judge. Action for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. The rnle is well settled that a trespasser upon a railroad train attempting to obtain a free ride without the consent of the carrier, can not recover for an injury received as a result of negligence. C. B. & Q. v. Mehl-sack, 151 Ill. 61; T. B. & W. R. R. Co. v. Books, 81 Ill. 245; Penn. Ry.

<p>1. Taxation: Tax Sales: Description.</p> <p>An assessment of land for taxation, describing it as "Pt. N. E. % of Sec. 26, Township 1, North, Range 1 West Salt Lake Meridian,” and “In N. W. % of N. E. % of Sec. 26,” same township, range, etc., containing seven acres, more or less, was insufficient, since the tract purporting to be assessed might have been located in any part of the larger tract described.</p> <p>2. Same: Power of Public Officer: Burden of Proof.</p> <p>The power of a public officer to sell land for nonpayment of taxes is a naked power, not coupled with an interest, and lienee the holder of a tax title must show that all of the requirements of the' law have been strictly complied with.1</p> <p>S. Same: Fees: Excessiveness: Effect.</p> <p>Where, on the sale of two tracts of land in controversy for nonpayment of taxes, the officers collected $7 as fees for one, and $6.50 for the other, and they were authorized by Comp. Laws 1888, section 2030 (Sess. Laws 1892, p. 30, sec. 2030a), in force at the time the sales were made, to eol-lect only $4 for each sale, allowing for a certificate like those issued, and for publication and filing, the sales were void.</p> <p>4. Same.</p> <p>Under Complied Laws 1881, section 2031, providing that when real estate is sold for taxes the collector shall issue. a certificate to the purchaser reciting substantially the facts of the nonpayment of the tax, the levy, and the advertisement and sale of such real estate, the collector was not entitled to prepare a certificate of such facts, which, by reason of unnecessary repetition, etc., contained 12 folios, and charge for the same at the rate of 25 cents per folio.2</p> <p>5. Railroads: Public Lands: Grants: Construction.</p> <p>After the U. C. railroad had been constructed into the business portion of the city of Salt Lake, where its terminal depot had been erected, Congress, by Act Dec. 15, 1870, 16 Stat. 395, granted such road a right of way through the public lands “from a point at or near Ogden City in the territory of Utah to Salt Lake City in said territory.” The grant also included land for necessary grounds for stations, work éhops, depots, etc., and imposed a condition that the road should be a post route and a military road, subject to the use of the United' States for postal, military, naval, and all other governmental service, and should be subject to congressional regulation. Eeld, that the words “to Salt Lake City,” should not be construed .as limiting the grant to the boundary of such city, but authorized the construction of the road over public lands within the city limits.</p>

H. H. Rolapp, Judge. Action to recover damages for personal injuries alleged to bave been caused by tbe negligence of tbe defendant. Prom a judgment in favor of tbe plaintiff, tbe defendant appealed. STATEMENT OF FACTS. In this action tbe plaintiff seeks to recover damages for personal injuries which be received while in tbe employ of tbe defendant railroad company.

<p>1. Condemnation Proceedings: Damages: Evidence: Failure to Make Objections: Effect.</p> <p>In condemnation proceedings, where the evidence was submitted to the jury without objection on plaintiff’s part, plaintiff'thereby admitted that it was sufficient to warrant an assessment of damages by the jury.</p> <p>2. Same: Jury: Province.</p> <p>The jury is the sole judge of the credibility of witnesses, the weight of evidence, and the damage shown, and the Supreme Court can not on appeal disturb the verdict on the ground of its alleged excessiveness.1</p> <p>3. Same: Appeal: Errors Reviewable: Excessive Verdicts.</p> <p>Where Revised Statutes 1898, section 3282, requiring the bill of exceptions, and section 3296, requiring the motion for new trial, to specify the particulars in which the evidence is alleged to be insufficient, a^e not complied with, the Supreme Court is precluded from passing on an objection that the evidence is insufficient to justify the verdict.2</p> <p>4. Same: Instructions.</p> <p>In condemnation proceedings there was no error in the refusal of an instruction that the jury were to assume that the railroad would be constructed and operated in a proper manner, where there was no evidence relating to the subject-matter of the instruction, and the court charged that damages were to be assessed with respect to the value of the property taken, in determining which the same considerations were to be regarded as in the sale of property between private parties; that the burden of proving by a preponderance of evidence the amount of damages sought by defendants was on defendants; that the jury were the exclusive judges of the credibility of witnesses and of the facts proven, in determining which they could consider any fact or circumstance in evidence affecting the credibility of any witness; and that they should consider all the evidence impartially, but should not consider testimony offered, but not admitted, nor any evidence stricken out by the court.</p>

—Hon. H. H. Bolapp, Judge. Action in the nature of specific performance. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OP PACTS. The.facts and circumstances out of which this action arose are as follows: On the 22d day of August, 1902, plaintiff was, and for several years prior thereto had been, the owner of a certain piece of real estate four rods in width by 134 feet in length, situate in Ogden City, Utah.

<p>1. Destruction of Growing Crops: Measure oí Damages.</p> <p>The measure of damages for the injury or destruction of grow* ing crops is the value of the crops in the condition they were in at the time of their injury or destruction, and not the market value at the time of their maturity or during the market season.1</p> <p>2. Same: Tort for Unliquidated. Damages: Interest.</p> <p>In tort for unliquidated damages, interest on the damages assessed from the date of the commencement of the action up to the date of the verdict is not recoverable.2</p>

<p>Appeal from the Third District • Court, Salt Lake County. — Hon. 8. W. Stewart, Judge.</p> <p>Action to recover damages to growing crops. From a judgment in favor of the. plaintiff, the defendants appealed.</p>

<p>1. Taxation: Statutory Construction: Intention.</p> <p>In construing a constitutional- provision the intention of the framers must prevail, whatever language may have been employed to express it.</p> <p>8. Same.</p> <p>In construing a particular section of a constitutional provision, . the courj; may refer to any other section or provision to ascertain the object, purpose, and intention of the framers in adopting the section.</p> <p>5. Same.</p> <p>It is a rule of statutory and constitutional construction that the meaning of general words will be restricted when it is found necessary in order to carry out the intention of the lawmakers.</p> <p>4. Same: Local Self-Government.</p> <p>The principle that local authority shall manage and control local affairs permeates the whole system of American government, and the Constitution of Utah was framed with that principle in view.</p> <p>2. Same: Assessment: Power of Legislature.</p> <p>In the absence of a constitutional system of taxation and of constitutional restraint, the Legislature has absolute power to adopt any means it sees fit for the purpose of assessing property and raising revenue to defray governmental expenses.</p> <p>7. Same: State Board of Equalization.</p> <p>The Legislature has power to authorize the State Board of Equalization to assess, for revenue purposes, property situated partly in one county and partly in another, or operated in two or more counties.</p> <p>6. Same: Assessment of Property Within County: Constitutionality of Statute.</p> <p>Constitution, article 13, section 11, creates a State Board of Equalization, and also a similar board in each county, the duty of the State Board being to adjust and equalize the value of property among the several counties, and the duty of the county board to adjust and equalize the valuation of property within the county. It also provides that each board shall “also perform such other duties as may be prescribed by law.” Article 8, section 5, provides that all legal business arisipg in any county shall be tried in such county, and article 13, section 5, forbids the Legislature to impose taxes for the purpose of any county, city or other municipality, but gives it power' to vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation. Article 11, section 4, provides that the Legislature shall establish á system of county government uniform throughout the State, and by general laws provide for precinct and township organizations. Held, that Laws 1899, page 102, chapter 68, amending Revised Statutes 1898, section 2513, and providing that property and franchises owned by railroad and certain other companies must be assessed by the State Board of Equalization, in so far as it conferred power on such hoard to assess property the situs and operation of which were wholly within one county, violated Constitution, article 13, section 11, as construed in the light of the principle of local self-government imminent in the Constitution, and could not be justified under the clause in such section giving the board power to perform other duties prescribed by law.1</p>

— Hon. W. C. Hall, Judge. Proceedings in the estate of Philip Pugsley, deceased. From an order refusing an allowance for support during the administration Martha Pugsley, widow of deceased, appealed.

— Eon. 8. W. Stewart, Judge. Action upon a contract. The defendant, O. X' Salisbury, .was the only member of the. partnership served with summons and the only defendant vdio answered in the case. Prom a judgment in favor of the plaintiff, the defendant Salisbury appealed. STATEMENT OE EACTS.

—Hon. H. H. Rolapp, Judge. Action to recover damages for property alleged to have been destroyed by fire caused by sparks from a passing locomotive of defendant. From a judgment in favor of the plaintiff, the defendant appealed. Evidence that sparks and cinders were issuing from an engine and set out other fires tends to charge the company with negligent running of the engine. Startz v. Chicago, M. & St. P. Ry.

—Hon. C. W. Morse, Judge. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

—Hon. H. II. Bolapp, Judge. Action to recover damages for personal injuries alleged to bave been caused by tbe negligence of tbe defendant. From a judgment of nonsuit, tbe plaintiff appealed.

— Hon. T. Marioneaux, Judge. Action to recover for personal injuries alleged to have been sustained by plaintiff because of defendant’s failure to furnish a reasonably safe course of ingress and egress to and from his place of work in defendant’s mine. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS.

<p>Appeal: Order Granting New Trial: Res Judicata: What May be Gone into on Second Trial.</p> <p>When a case is reversed and a new trial ordered without any restrictions or limitations the entire case is reopened and the parties hold the same relative positions with respect to the introduction of evidence, burden of proof, etc., as if the case had never been tried.</p>

<p>1. Motion for New Trial: Amendments: Discretion of Trial Court.</p> <p>In an action to recover a loan, the court, after rendering judgment for plaintiff, granted defendant’s motion for a new trial and permitted him to file an amended answer which disclosed the fact that the debt was the result of a gambling transaction, whereupon judgment was rendered for defendant. Held, that the granting of the new trial and permitting the filing of the amended answer were matters resting in the sound discretion of the trial court and no circumstances appeared to show an abuse of discretion. ■</p> <p>2. Same: Gambling Transaction: Duty of Trial Court.</p> <p>Where it appears that a suit is the result of a gambling transaction it is the duty of the lower court to direct the enforcement of the criminal laws as to all tne offenders.</p> <p>3. Same: Gambling Debt: Enforcement.</p> <p>A court of justice will not aid a -gambler in enforcing a claim founded on his own nefarious transactions.</p>

— Row. James A. Miner, Judge. Action to recover damages for the negligent killing of plaintiffs’ live stock by defendant company. From a judgment in favor of the plaintiffs, the defendant appealed.