Volume 28 — Wyoming Reports

Chas. E. Winter, Judge. Action by Chas. J. Lemos against William Madden, James M. Graham and Hugh Murray, to recover damages for bodily injuries incurred from cold and exposure while caring for defendants’ sheep, it being alleged by plaintiff that the negligence and failure of defendants to supply him with fuel and assistance at the camp and on the range while at work with the sheep was the proximate cause of his injuries. Other material facts are stated in the opinion.

James H._ Burgess, Judge. Proceedings for a writ of prohibition on the relation of Sheridan Investment Company against the Board of County Commissioners.in Sheridan County. There was a judgment for defendant and plaintiff brings error.

Percy W. Metz, Judge. Action by the Big Horn Milling Company against Joseph Sneider and another, individually and as partners under the firm name of Sneider & Wallace. There was a judgment for plaintiff and defendants bring error. The material facts are stated in the opinion.

James H. Burgess, Judge. Action by Lucy Sweeney as administratrix of the estate of John C. Sweeney, deceased, against Walker Hines, Director General of Railroads on account of the death of deceased, alleged to have been caused by operation of a railroad train at a dangerous and negligent rate of speed. There was judgment for plaintiff and motions for new trial made by both parties were denied; defendant brings error and plaintiff files cross petition in error.

■Charles E. Winter, Judge. Action by Bessie Quinlan against Edward T. St. John for the recovery of payments and expenditures for improvements made under an agreement between them for the purchase of realty. From a judgment dismissing plaintiff’s first cause of action plaintiff brings error.

John R. Arnold, Judge. Annie Richey was convicted of larceny and brings error. The court erred in not sustaining defendant’s motion to quash the information on the ground that it charged several offenses in one count. (6186 Comp. Stats. 1910.

Ralph W. Kimball, Judge. Action by James Barquin and another against Hall Oil Company and others. There was a judgment for defendants and plaintiffs bring error. Heard on motion to strike assignments of error from the petition, to dismiss and to strike motions and rulings from the bill of exceptions and correct the bill. No briefs were filed by either party.,

Chas. E. Winter, Judge. Action by James Barquín and another against the Hall Oil Company for the cancellation of two oil and gas leases and for damages for failure to cancel said leases of record following forfeiture of rights thereunder by failure to drill. Opinion denying rehearing follows the original opinion.

William C. Mentzer, Judge. Action by the North Laramie Land Company against Albert E. Hoffman and others individually and as constituting the Board of County Commissioners of Platte County, and another. There was judgment for defendants and plaintiff brings error. Heard on motion to dismiss.

CHARLES E. WINTER, Judge. Action by Charles Bader against Mills and Baker Company and another for damages in trespass for an alleged interference and injury to plaintiff’s irrigation ditch and dike resulting in a loss of water supply. There was a judgment for plaintiff and defendant appeals. In an action for damages to growing crops the nature of plaintiff’s title should he shown and the trial court erred in overruling appellant’s motion, for a more specific statement.

Ralph Kimball, Judge. Action between Julius Fried and another and S. A. Guiberson, Jr. To the judgment, Julius Fried and another bring error. Heard on motion to extend the time of plaintiffs in error for filing and serving briefs. No briefs.

E. C. Bayhond, Judge. Charles Crago was convicted of the crime of statutory rape and brings error. The material facts are stated in the opinion.

John R. Arnold, Judge. Action by John F. Fitzpatrick against Frank P. Rogan and wife for accounting dissolution of partnership also for injunction and receivership pending suit. From an order denying the application of plaintiff for the appointment of a receiver pending dissolution and accounting, plaintiff brings error.

Percy W. Metz, Judge. Action by Walter S. Dickey, et al., trustees, doing business as W. S. Dickey Clay Manufacturing Company against Wm. P. Bullock and Bench Canal Drainage District, for the recovery of the cost of labor and material furnished a contractor in the performance of drainage construction for defendants. From a ruling and decision sustaining a demurrer to the petition and judgment for defendant, plaintiff brings error.

<p>Appeal and Error — Following Record on -Appeal Within Time Jurisdictional.</p> <p>1. The preparation and filing of the record on appeal in District Court within the time required by statute, is juri-dictional and unless complied with, proceedings on appeal will be dismissed.</p>

James H. Burgess, Judge. The Court erred in overruling the motion of plaintiff to strike out parts of the amended petition, and to require a more definite and specific statement of claim. The petition did not comply with the requirements of Section 4380 Comp. Stats. 1910 requiring that causes of action be separately stated and numbered. (King v. Beaumier, 174 Pac. 613; 25 Wyo. 35.) The credit should have applied to the cause of action that first accrued.

William C. MeNtzer, Judge; Action by Frederick J. Ihmsen as administrator of the estate of Thomas Gardner, deceased, against Fred F. Bam-forth and another to quiet title to interests in ditch and water rights in which cause the heirs of Thomas Gardner, deceased, and C. P. Arnold, intervened. There was a judgment for plaintiffs and intervenors and defendant Bamforth brings error. The material facts are stated in the opinion.

E. C. Raymond, Judge. Action by J. A. Beatty against Charles F. McGinnis for damages; defendant demurred to the petition which was sustained by order allowing time for the filing of an amended petition without fixing time within which defendant was required to plead. Defendant’s answer to the amended petition was thereafter stricken on motion of plaintiff and a default judgment was entered against defendant.

Ralph Kihball, Judge. Action by C. H. Finley against George H. Pew to recover a payment alleged to be due on account for labor and material furnished and money advanced in connection with a building contract. There was a judgment for plaintiff. Defendant appeals and plaintiff brings error.

Proceedings by tbe Town of Newcastle, a municipal corporation against Henry F. Smith and numerous other defendants in the nature of condemnation, but for the purpose of changing certain water permits from beneficial to a preferred use for municipal purposes. There was a judgment for plaintiff and from an order denying a motion to modify or vacate the judgment, defendants appeal.

John R. Arnold, Judge. Action by James Barrett against the Green River & Rock Springs Livestock Company, and others. From an order denying an application for the appointment of a receiver pendente lite, plaintiff brings error. The answer of defendants is insufficient under the rule of equity pleadings requiring a full and responsive answer setting forth a fair explanation and discovery free from evasiveness or ambiguity.

BROWN, Judge. Action by Walter L. Bass .on behalf of himself and of others similarly situated, against the City of Casper and its treasurer to enjoin the collection of special assessments for street improvements and to remove the cloud of title caused by said assessments. There was a judgment for plaintiff and defendants appeal. Other material facts are stated in the opinion.

ARNOLD, Judge. On rehearing. Motion to dismiss the appeal formerly granted denied as to the .appeal from the so-called order denying a new trial and judgment. The -appeal is from the decree entered on the merits below and also from the order denying motion for new trial; the order denying motion for new trial is appealable, (5107 C. S.) also reviewable on error.

Brown, Judge. Action by tlie City Sanitation Company against the City of Casper to establish its exclusive right to remove garbage under a certain contract. From a judgment in favor of defendant, plaintiff brings error and moves for an injunction pending appeal. Injunction is a proper and only remedy and should be granted pendente lite pending appeal. (Coxe v. Huntsville Co., 129 Ala. 496; Hicks v. Michael, 15 Cal. 107; Will v. Fire Commissioners, 46 La.

<p>ERROR to tbe District Court, Albany County, Volney J. Tidball, Judge.</p> <p>On petition for rehearing. For former opinion, see 27 Wyo. 501; 200 Pae. 108.</p>

Metz, Judge. Action by George A. Le Gault against P. E. Lewis-Zimmerman for dissolution of partnership, appointment of receiver and for an accounting. There was a judgment of dismissal and plaintiff appeals.

Mentzer, Judge. Orrin G. Wiggin was convicted of willfully and maliciously killing a head of neat cattle, and brings error. Reversed and remanded. Malicious killing within the meaning of the statute must have been done out of a spirit of cruelty, hostility or revenge directed against the owner of the animal killed.

Tidball, Judge. Heard on motion to consider the record in Case No. 1027 as the record in this case and also heard on motion to dismiss. Case No. 1027 involving interest of the same parties was dismissed and this proceeding was started. The motion is that the record in 1027 be considered the record in this case, which presents a different arrangement of some of the parties. Upon this ground Joseph Barrett moves to dismiss.

W. Metz, Judge. Action by Martin Dow, lessee, against Laura Bryant, lessor, upon a note given for rent in which defendant counterclaimed for damages to crops alleged to have resulted from shortage of water for the irrigation of the lands described in the lease. There was a judgment directed for plaintiff notwithstanding the verdict and defendant brings error. The material facts are stated in the opinion.