Volume 28 — Utah Reports

— Hon. G. W. Morse, Judge. Action to quiet title to a certain mining claim. From a judgment in favor of the plaintiffs, defendant Kimberly appealed. STATEMENT OF FACTS. This is an action to quiet title to a certain patented mining claim known as the “Henrietta,” situated in Ophir mining district, Tooele county, Utah.

<p>Robbery: Indictment: Force: Fear.</p> <p>Rev. St. 1898, section 4175, defines robbery as tb© felonious taking of personal property in the possession of another from his person, or immediate prgsence, and against his will, accomplished by force or fear. Section 4355 defines larceny as the felonious stealing, etc., of the property of another, and section 4359, subd. 2, defines grand larceny as larceny committed when the property is taken from the person of another. Held,, that an indictment for robbery, failing to charge that the property taken from the person of the prosecutor was taken “by means of force or fear,” was insufficient.</p>

<p>Appeal from the Seventh District Court, Carbon County. — How. Jacob Johnson, Judge.</p> <p>The appellant was convicted of robbery and appealed.</p>

<p>Appeal from the Seventh District Court, San Juan - County. — Ho». Jacob Johnson, Judge.</p> <p>The defendant was convicted of grand larceny and ■appealed.</p>

—Eon. E. E. Rolapp, Judge. Action to recover damages sustained because of the failure and neglect of the defendant company to send and deliver certain telegrams which were delivered to it by plaintiff for transmission. From a judgment in favor of the plaintiffs, the defendant appealed.

—Hon. H. H. Bolapp, Judge. The facts are stated by the court. Prom a judgment in favor of tbe defendants, the plaintiff appealed. Neither the city nor the taxpayers are estopped from contesting the validity of the proceedings if they ■act within a reasonable time. 2 Beach, Pub. Cor., sec. 1327; State v. Atlantic City, 9 Atl. 759; 15 A. & E. Enc. of Law, 1100; Seeger v. Mueller, 24 N. E. 515.

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

— Row.. Wm. G. Hall, Judge. Action in equity to restrain the defendant from using a certain roadway in Salt Lake City. Prom a judgment in favor of the plaintiffs, the defendant appealed.

<p>1. Criminal Law: Robbery: Indictment: Value of Property Sufficiency.</p> <p>Under Rey. St. 1898, section 4175, providing that robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear, an indictment not alleging the value of the money taken “in current United States silver coin” was sufficient, and an amendment inserting these words was not prejudicial to defendant.</p> <p>2. Same: Consent: Sufficiency.</p> <p>The indictment having charged that the robbery was “from the pers'on and immediate presence of one R., and by means of force and fear, and by threatening to shoot and kill him,” and that defendants feloniously took a certain sum from the possession of said R., was sufficient, and the insertion of the words “and against his will” was unnecessary and not prejudicial.</p> <p>3. Same: Appeal: Verdict not Disturbed, When. ,</p> <p>Where, on appeal from conviction for crime, there was evidence which strongly tended to show the guilt of the accused, the appellate court cannot disturb the verdict.</p>

— Hon. T. D. Lewis, Judge. Action on a judgment. Prom a judgment in favor of the defendant, the plaintiff appealed. If a defendant is sued by a wrong name and he appears by his right name it is proper to declare against him in the name by which he appears. Oakley v. Giles, 3 East 167; Doo v. Butcher, 3 T. R. 611; 1 Chit. PL (16 Am. Ed.), 342.

— Ho». S. W. Stewart, 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. Jacob Johnson, Judge. An election contest instituted in pursuance of chapter 9, title 18, Eevised Statutes 1898. From a judgment in favor of the contestants, the contestees appealed.

— Hon. Win. G. Rail, Judge. Action to foreclose a mortgage given to secure a certain promissory note. From a judgment in favor of the defendants, the plaintiff appealed.

— Hon. S. W. Stewart, Judge. Action to recover damages for personal injuries alleged to have been caused by tbe negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS. This is an action to recover damages for physical injuries which the plaintiff claims he received because of the negligence of the defendant.

—Hon. H. H. Iiolapp, Judge. Action to recover damages for personal injuries alleged to have been occasioned by tbe negligence of tbe defendant. From a judgment in favor of tbe plaintiff, tbe defendant appealed.

— Hon. G. W. Morse, Judge. Action to recover a certain , sum of money claimed to he due from the defendant to the plaintiff. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OF FACTS.

Court, Sanpete County. — Hon. Jacob Johnson,. Judge. Action for the specific performance of a cohtract. and for damages for an alleged breach of the same by the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

— Hon. O. W. Morse, Judge. Action in equity to have certain mining transactions declared null and void. From a judgment in favor of the defendants, the plaintiffs appealed. STATEMENT OF FACTS. This is an action in equity resulting from certain mining transactions, whereby the plaintiffs claim they were defrauded..

— Eon. T. Marioneaux, Judge. Action to restrain defendants from operating and using a certain steam railway track in proximity to plaintiffs’ property. Prom a judgment in favor of the plaintiffs, the defendants appealed. STATEMENT OF FACTS.

— Him. S. W. Stewart, Judge. Action to condemn a right of way' for plaintiff’s aerial tramway over defendant’s mining claim. From a judgment in favor of the plaintiff, the defendants appealed. Held: and has been held, in Utah and other arid western States. So as to what is a public use depends very greatly on the locality.

<p>Appeal from the Third District Court, Salt Lake County. — Ho». G. W. Morse, Judge.</p>

-Hon. W. G. Rail, Judge. Action to quiet title to certain real estate in Salt Lake City. Prom a judgment in favor of the defendant, plaintiff appealed. The deed dated September 26, 1882, was properly admitted in evidence.

— Eon. 8. W. Stewart, Judge. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant in permitting the obstruction of one of the city’s streets. From a judgment in favor of the plaintiff, the defendant appealed. Defendant’s challenge to the jury should have been sustained. The jury offered in this particular case was not drawn for the department of the court in which it sat.

— Ho». II. E. Bolapp, Judge. The opinion states the facts and nature of the action. Prom a decree in favor of the defendants, the plaintiff appealed. The evidence establishes a conditional sale — not a mortgage.

— Son. C. W. Morse, Judge. Application of J. H. Clark for a writ of habeas corpus to review a conviction of grand larceny. ' Prom an ■order denying the writ, the relator appealed, This case was considered and affirmed on appeal in this court and is reported in 27 Utah 55, 74 Pac. Rep. 119. Whether or not the points now presented were raised before this court at the time the appeal was taken is immaterial. ‘ ‘ The whole case should have been presented at that time.

8. W. Stewart, Judge. Action in conversion for personal property levied on. From a judgment in favor of the defendants, the plaintiff appealed. The first error assigned is that the peremptory instruction to the jury 'to return a verdict for the defendant, James E. Jennings, was such an extended error that it prejudiced the entire ease.

— Now. W. C. Hall, Judge. Action to foreclose a mechanic’s lien. From a judgment in favor of the plaintiff, the intervenor appealed.

— Ron. W. C. Rail, Judge. Action in ejectment. From a judgment for defendants, the plaintiff appealed.

W. C. Hall, Judge. Action for divorce.' From the part of the decree awarding alimony, the defendant appealed. The findings of fact by the trial court will not be set aside unless made clearly against the preponderance of the evidence.

T, D. Lewis, Judge. Action to recover fees in poll tax cases tried before deceased as City Justice. From a judgment in favor of plaintiff, the defendant appealed. The sole question to be presented is whether or not Mr. Timmony was paid in full by his salary for all services rendered to the city in and by virtue of his office in trying these poll tax cases. There is a marked distinction between an individual and an officer.

W. Steiuart, Judge.. • Action to condemn a right of way. From a judgment, the railroad company appealed. Held: as it should have been held in this case, that there was but one road in the case; it was simply a change of route for the road so that it ran over a new line, but it continued to be the same road, and that additional damages caused by the change should be allowed, and no more.

— Hon.. C. W. Morse, Judge. Action to recover damages for personal injuries. From a judgment in favor of the plaintiff, the defendant appealed. In the case at bar, defendant objected to Judge Tanner, as one of the judges of the city court of Salt Lake, taking part as an attorney for plaintiff in the trial of the case.

— ffo». T. D. Lewis, Judge. Action to recover money loaned. From a judgment in favor of the plaintiff, the defendant appealed.

— Ho». H. H. Rolapp, Judge. In an action by West against Sburtliff and others the defendant Shurtliff filed a supplemental petition to set aside a judgment against him and in favor of his co-defendant Larsen. From a judgment granting the relief prayed for Maria A. Larsen, sole legatee of the defendant Larsen, deceased, appealed.

. Appeal from the Third District Court, Salt Lake County. — Hon. G. W. Morse, Judge. Action by plaintiff as trustee in bankruptcy to recover certain sums paid out by the bankrupt. ‘ From a. judgment in favor of the plaintiff, the defendant appealed. It is the right of the party to have the jury instructed on the law applicable to the case clearly and pointedly so as to leave no reasonable grounds for misapprehension or mistake.

District Court, Carbon County. — Ron. Jacob Johnson, 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.

— Eon. T. D. Lewis, Judge. The plaintiff, a foreign corporation, brought this action to recover the value of certain goods sold and delivered to the defendant. From a judgment in favor of the plaintiff the defendant appealed. Can a foreign corporation without complying with the laws of Utah, maintain an action in its courts on contracts entered into within the State, while it was engaged in a general business in disregard of its laws?

— Hon. C. H. Hart, Judge. Action to determine the right to the use of certain, waters. From a judgment in favor of the plaintiff, the defendants appealed. “Water combined with the earth, or passing-through it, by percolation or filtration, or chemical attraction, has no distinctive character of ownership from the earth itself any more than the metallic oxides of which the earth is composed.

— Eon. G. W. Morse, Judge. Action for money had and received. From a judgment in favor of the defendants, the plaintiff appealed. There is no- attempt on the part of the plaintiff in this case to enforce the original transaction. That has been executed. The plaintiff does not ask the court to recognize that transaction or give aid to it. It is the defendants who are seeking to invoke the alleged illegal transaction as a defense.

— Now. T. D. Leivis, Judge. Action to recover the possession of certain chattels or their value. From a judgment in favor of the plaintiff, tiie defendant appealed.

<p>1. Contracts: Construction.</p> <p>Plaintiff, by a contract with defendants, agreed to sell them a half interest in a mining property; advances to be made by defendants for litigation andimprovements to be applied on the purchase price. By a subsequent contract the advances were to be repaid defendants, and by a third contract a corporation to which the property had been conveyed did “assume and agree to pay . . .” the moneys advanced “as per” the first contract. Held, that the phrase “as_ per,” etc., referred to the advancements, and did not qualify “assume and agree to pay,” and hence did not abrogate the provisions of the second contract providing for repayment of the advancements.</p> <p>2 Same: Appeal: Review of Evidence.</p> <p>On appeal in a law case the court does not pass on the weight of the evidence when there is a substantial conflict, or when competent evidence supports the findings.</p>

— Hon. T. D. Lewis, Judge Action by Mary Shafer against George Russell. From a judgment in favor of the defendant, the plaintiff appealed. The first error complained of by appellant was upon the admission of evidence.

— Hon. Charles H. Hart, Judge. Action to recover damages for personal injuries alleged to have been received through the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. Appellant is sued in this action for negligence and can only be held liable where there is some evidence tending to show his negligence.

—Hon. H. H. Rolcvpp, Judge. From an order approving and allowing the report and final account of G-. H. Burgitt, deceased, late administrator of said estate, Millie Gr. Reed, administra-trix appealed.

— Hon. T. W. Stewart, Judge. Action to recover a certain sum alleged to be due for services rendered in reporting and transcribing the proceedings upon the trial of an action. Prom a judgment in favor of the plaintiff, the defendants appealed.

— How. G. H. Hart, Judge. * Action to recover damages for personal injuries. From a judgment in favor of the plaintiff the defendant appealed. STATEMENT OF FACTS. In this suit the plaintiff seeks to recover damages for personal injuries which he claims he received through the negligence of the defendant. The answer denies the negligence charged, and alleges contributory negligence and assumed risk on the part of the plaintiff.

<p>1. Insurance: Sick Benefits: Actions to Recover: Sur-vivorship.</p> <p>A cause of action in favor of a member of a beneficial association to recover sick benefits payable to bim during bis lifetime survives bis death, and may be brought by bis administrator. ■</p> <p>2. Same: Funeral Expenses: Right of Action.</p> <p>An administrator of a deceased member of a beneficial association may recover an allowance for funeral expenses provided for by the laws of the association, but wbicb are not declared payable to any particular person.</p> <p>3. Same: Action:- Parties: Unincorporated Beneficial Association.</p> <p>Where a complainant, naming as defendants the individual members of an unincorporated beneficial association alleged, and the evidence showed, that the association as such had trust funds in its possession, which were collected from its members to pay obligations of the character of the one in suit, and it was sought to subject those funds to the payment of such obligation, and the judgment as entered could only be satisfied out of the property of the association, the proceedings were not subject to the objection of attempting to hold the members of the association personally liable for the association’s debts.</p> <p>4. Same.</p> <p>A voluntary association cannot be sued in its name as such, but can be brought into court only in the name of its members, or, if they are too numerous, a few of them may be made defendants to represent the interests of all.</p> <p>5. Same: Restriction of Actions: Tribunals of Order.</p> <p>While members of a voluntary association may restrict themselves as to matters incidental to the operation of the association to remedies before tribunals created by the association, such restriction cannot extend' to the right to benefits due the members under contract with the association, so as -to require them to exhaust the remedy provided by the tribunals of the association as a condition precedent to suing for such benefits.1</p> <p>6. Same: Irregularities of Proceedings.</p> <p>The action of a beneficial association, which knew of the illness and mental derangement of a member, in dropping such member from its rolls without his knowledge or consent, and without representation or hearing, because of his failure to pay dues during a time when it failed to pay the sick benefits to which he was entitled, was so irregular as to be grossly unjust, and did not preclude the member’s personal representative from, suing to recover the benefits , notwithstanding a stipulation of the contract of membership requiring the member to submit his grievances to the tribunals of the association without resorting to the courts.</p> <p>7. Same: Forfeiture: Estoppel.</p> <p>A beneficial association, which, with knowledge of the sickness and mental derangement of a member, accepted arrearages of dues which placed him in good financial standing, and received monthly dues for six months thereafter, was es-topped to insist on a forfeiture on account of such ar-rearages.</p>

— Now. T. D. Leivis, Judge, Action to recover a death benefit. From a judgment in favor of the plaintiff, the defendant appealed. A contract of insurance never becomes complete until the last act necessary to1 be done by either party has in fact been done, although one side or the other may conditionally bind itself by a proposition, which when unconditionally accepted ripens the negotiations into a contract. Bacon’s Ben.

<p>1. Beneficial Associations: Change of Beneficiary.</p> <p>Where the contract between a beneficial association and member provided for a change of the beneficiary by a surrender of the certificate and the issuance of a new one, the motives or reasons which induced the member to attempt to change the beneficiary by permitting his membership to lapse, as a preliminary to taking out a new certificate, instead of following the provisions of the contract, were immaterial on the right of the contemplated beneficiary to recover the insurance money.1</p> <p>2. Same: Tender: What Sufficient.</p> <p>Where the constitution, rules, and regulations of a beneficial association required the officer who collected assessments to give official receipts for all money received, and keep stubs of each receipt given by him, and to attest benefit certificates and other official documents, and further required certificates to be signed by another officer before delivery to the member, and the collecting officer kept an office known to the members, where he transacted the business of the order, a tender of dues and assessments and demand of a certificate, made on the clerk on a public street, after business hours and away from his office, at a time and place where he could not comply with the requirements of the order or furnish the certificate properly signed, was insufficient to fix the rights, as a member, of the person making the tender, or the liability of the association.</p> <p>3. Same: Contracts: Construction.</p> <p>Where a contract consists of several different instruments, each document will be read and- construed with reference to the others, and the contract will, if possible, be given effect as a whole.</p> <p>BAKTCH, C. J., dissenting.</p>