Volume 29 — South Dakota Reports

<p>Where an order denying a motion for a new trial is made after judgment is entered, an appeal from the judgment alone does,, not bring up the order for review.-</p> <p>Unless the order denying a new trial is appealed from, either independently or brought up on appeal from the judgment, the sufficiency of the evidence to sustain a finding or verdict cannot be reviewed.</p> <p>Under Code Civ. Proc. § 463, providing that questions of fact decided by the court or referee may be reviewed when exceptions to the findings have been duly taken by either party and returned, the exceptions to findings by the court must specify the particulars in which the evidence does not sustain the finding, in order to review the question.</p> <p>Since Prob. Code, § 47, provides that, in probate contest, the court must render judgment, either admitting the will to probate or rejecting it, the only matters adjudicated upon probate of a will are that the will is duly executed and attested, was not procured by fraud, that testator has sufficient mental capacity and authority to dispose of his property, that the attesting witnesses were competent, and that the evidence sustained the probate; and the capacity of a beneficiary to take property is not adjudicated by probate, and hence cannot be considered on appeal from a judgment denying probate.</p> <p>The court found, in probate proceedings, that at the time of the execution of the purported will testatrix was a person of unsound mind and incapable of rationally understanding her duties and obligations toward society or her friends, and unable to form a rational desire as to the disposition of her property, and that at that time, and long prior thereto, she was insane and the victim of insane delusions, and that her attempted testamentary disposition was induced by such delusions; and the findings further stated that testatrix was a spiritualist, and believed that her acts, including the execution of the will, were directed by departed spirits. Held, that the findings sustained a judgment denying probate on the ground of want of testamentary capacity.</p> <p>A belief in spiritualism is not of itself evidence of insanity, preventing the execution of a valid will, though an insane delusion may arise out of a religious belief.</p> <p>To invalidate a will, an insane delusion must be operative in the testamentary act.</p> <p>That a testamentary disposition may be regarded by others as foolish, unusual, or unjust does not necessarily invalidate it as the product of an incompetent testator.</p>

<p>The Supreme Court will not annul a verdict where the trial' court would not have been justified in directing a different verdict.</p> <p>A contract reciting that, as part consideration for conveyance v of a railway right of way/the company will so maintain the vendor’s irrigation ditches crossed hy it as not to interfere with the irrigation hinds the company to establish an adequate system of ditches so as not to interfer© withe the proper irrigation of the vendor’s land, and, when such system is established, it must maintain the same on its right of way so that the irrigation water may at all proper times pass freely across it.</p>

Hon. Frank B. Smith, Judge. Probate proceedings by Grace Knight against Frank R. Aikens, executor, and others, in the matter of the will of William H. Corson. From a judgment probating the will and denying probate to a codicil, defendants appeal.

Hon. Frank McNulty, Judge. A. E. Leavitt was convicted of obtaining property under false pretenses by means of a sale of certain horses represented as sound, but alleged to have been diseased, and he appeals.

Hon. Frank Mc-Nulty, Judge. Action by John Bucknell against B. P. Archer and others. From an order vacating a judgment for plaintiff, and giving certain defendants leave to serve and file answers, plaintiff appeals.

Hon. Frank B. Smith, Judge. Action by Uriah S- Fry against L. E. Ausman and others. From a judgment for defendants, plaintiff appeals. The deed to'the grantor contained the following clause: “The same are free from all incumbrances, except a first mortgage of $5,000;” but contained no statement that she assumed the mortgage. .

<p>Where a hill of exceptions, settled under Laws 1911, c. 15, providing for the manner of making appeals to the Supreme Court, shows no exceptions to the instructions, and a proposed hill of exceptions under the old law, showing exceptions, was not settled, the instructions were not excepted to and became the law of the case, and were not reviewable.</p> <p>In the absence of any motion for a directed verdict, the question of the sufficiency of the evidence can only be presented, on motion for new trial, through statement of the ease, within Code Civ. Proc. § 305, providing for statement of the case and the method of preparing and serving the same.</p> <p>Laws 1911, c. 15, defining the manner of taking appeals does not amend or repeal Code Civ. Proc.. § 305, regarding statement of the case and the method of preparing and serving the same and proposed amendments thereto.</p> <p>Where the question of the sufficiency of the evidence 'was not properly raised on motion for new trial, and where there had been no request for direction of verdict, the question could not be raised on appeal.</p> <p>A motion for new trial on the ground of newly discovered evidence is addressed to the discretion of the court; and its ruling will not be disturbed, in the absence of an abuse of discretion.</p>

<p>Appeal from Circuit Court, Grant County. Hon. Frank B. McNulty, Judge.</p> <p>Action by the Township of Blooming Valley against Ole O. Bronson, From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Lake County. Hon. Joseph AV. Jones, Judge.</p> <p>Action by J. A. Busch against the South Dakota Central Railway Company. From a judgment for plaintiff, defendant appeals.'</p>

Frank Mo Nui/fy, Judge. Nils P. Cronlokken was convicted of violating an ordinance of the city of Milbank on trial de novo in the circuit court, and he appeals from the judgment and from an order denying a new trial.

<p>Since a contract by an Indian to convey land which the United States holds in trust for him is absolutely .void, he need not return any consideration received by him, in order, after securing his final patent, to obtain a decree adjudging that the other parties to the contract háve no interest in the land; the rule which requires the return of the consideration applying only where part of the contract is legal.</p>

<p>Where the head of a family sues for conversion of personalty which he is entitled to hold as exempt, a judgment rendered in his favor is also exempt.</p>

Hon. Frank McNulty, Judge. Action by Henry Stenson and another against August Elfmann and another. From a judgment dismissing the complaint and an order denying a motion for a new trial, plaintiffs appeal.

Hon. R. B. Tripp, Judge. Action for specific performance by Eric A. Floren against Swan August Larson and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

<p>1. Sales — Express Warranty — Issues.</p> <p>A purchaser of seed corn who made an advance payment before full delivery, and sued for breach of express warranty of a specified germinating standard and to recover back the payment, cannot recover in absence of proof of breach of such warranty, even though there was an issue of implied warranty under one phase of the evidence.</p> <p>a. Instructions — Issues—Misleading Instructions.</p> <p>In an action by purchaser of seed corn for rescission of the contract and recovery of an advance payment, plaintiff relying on an express warranty, and defendant’s counterclaim alleging plaintiff’s refusal to accept the corn; the court instructed that plaintiff must show an express warranty in order to recover, and in another instruction that if the corn was sold, as alleged by defendant, without an express warranty, and was reasonably fit for seed corn, the purpose for which it was bought, if bought, defendant could recover on his counterclaim; held, such instruction was not misleading to the jury.</p> <p>3- ■ Implied Warranty — Counterclaim—Evidence Outside of Issue.</p> <p>Where defendant counterclaimed for affirmative damages for breach of contract for corn sold to plaintiff without warranty or condition, but the issues did not disclose the purpose for which the corn was bought, still, where defendant without objection testified that plaintiff informed him and that he knew plaintiff purchased same for seed; under such evidence the law implies a warranty of fitness .of merchandise sold for the purpose for which bought; and held, that the burden was on defendant to prove, in order to recover, that the corn was reasonably fit for seed, unless it also appeared there was a contract wholly excluding the implied warranty.</p> <p>4. Instructions on Evidence Outside of Pleading — Implied Warranty.</p> <p>Where the seller iof corn counterclaimed for purchaser’s breach in refusing to accept, and testified without objection that - the purchaser informed him that he intended to use it for seed; held, that instructions were properly based upon such evidence, though the facts were not pleaded, and the court properly instructed on the subject of implied warranty, as, if the corn was not reasonably fit for seed, defendant could not recover.</p> <p>5. Theory of Trial — Instructions on Whole Case.</p> <p>It is proper to give instructions on the theory upon which the parties try the case, although the pleadings, technically, do not support such theory; and where plaintiff’s -cause of action was based upon and governed by the rules relating to express warranty, yet where defendant’s counterclaim, taken in connection with defendant's evidence, was governed by rules relating to implied warranty, held, it was .proper for the court to instruct upon both theories.</p> <p>6. Both Express and Implied Warranty — Instructions, How Applied.</p> <p>Although it is -generally held -there can be no implied warranty of fitness where an express warranty exists, yet, there might exist either .one or the other, where the opposite of one .or the other is found to exist; and held, that in giving the instruction complained of, the trial court intended the reference to the implied warranty to be considered only in the event that the jury found there was no. express warranty.</p> <p>7. Instruction not Requested — No Error.</p> <p>While the court might -have instructed that if the jury believed defendant’s version of the alleged sale — that he told plaintiff he would not warrant the corn in question for any purpose, — no warranty, express .or implied, could be considered as against defendant; yet, as no such instruction was requested, held, no error -can be based on the absence thereof.</p> <p>8. Express Warranty Found — Instruction on Implied Warranty ' Immaterial.</p> <p>Where the jury find that there was an express warranty, an instruction as to implied warranty, if conceded to be erroneous, is error without prejudice, -as such finding rendered immaterial the question of implied warranty.</p> <p>9. Testimony — Improper Cross-Examination — Scope—Immateriality.</p> <p>Where testimony concerning difficulty iu getting good seed corn sought to he adduced on cross-examinatian, did not relate to anything the party had testified to .on direct examination, and was material only in connection with the opposite party’s counterclaim, which was not yet opened to the jury, ' held, such testimony was properly rejected. Held, further, that such testimony was wholly immaterial for any purpose; the subject .of sale being the particular corn of defendant.</p> <p>10- Insufficiency of Evidence — Substantial Conflict — Verdict Conclusive.</p> <p>Where the evidence concerning the amount of corn delivered under a sale, presents substantial conflict, tbe verdict of the jury is conclusive.</p>

ITon. William G. Rice, Judge. Action by John W. Thompson against Alii Reed as The Reed Rural Telephone Company, for damages for negligence in allowing a sagging- telephone wire tO' remain where plaintiff, an omnibus drivei-, was caught and injured by it. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Hon. Ryman T. Boucher, Judge. Action by H. E. Powell against Keiser Rand Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. The evidence was insufficient to justify a verdict for plaintiff or the submission of the case to the jury.

Court, Spink County. Hon. Alva E. Taylor, Judge. Action by G. M. Watters against A. D. Lincoln for specific performance of contract for sale of land. Trial to the Court. From a judgment for defendant, plaintiff appeals; alleging insufficiency of evidence to justify the findings and judgment, and that findings and judgment are against law.

Hon. C. X Spward, Judge. Action by the State, on -the relation of J. A. Dillman, to prohibit P. We-ide and others, trustees of town of Revillo, from submitting the question of granting permits for sale of intoxicating liquors to voters at the general municipal election. From ’an order granting a peremptory writ of prohibition against further proceedings, entered upon sustaining a demurrer to defendants’ answer, defendants appeal.

Hon. J. H. Bowum, Judge. Action by J. W. Harris against G. W. Leise, upon a promissory note executed by defendant to one Nye, who assigned same to plaintff after maturity. From a judgment for defendant, and from an order 'denying a new trial, plaintiff- appeals.

<p>1 Taxation — Equality—Uniformity—Mode of Assessment.</p> <p>Constitution, Art. 11, Sees. 2, 4, providing that taxes shall be uniform on all property according to value ascertained by rules prescribed by general law, etc., so that taxes shall be proportional to value, recognizes no classes .of property, but leaves the legislature to provide rules of appraisement and. assessment, but the rules need not necessarily result in .absolute uniformity, equality, and proportion.</p> <p>2. Taxation-Excessive, Unequal, * Disproportionate Assessment— Remedy.</p> <p>Eor a merely excessive, unequal, or disproportionate assessment, -where no principle of law is intentionally violated in making it, hut involving merely error of judgment of assessment officers, the sole remedy is through application for abate- . ment to the assessor or equalizing hoards, whose decisions are final except where they act without jurisdiction, or are guilty of fraud in fact or law. Courts cannot give aid in such cases unless specially authorized hy statute.</p> <p>3. Excess of Jurisdiction — Fraudulent Assessment — Remedy.</p> <p>But wherever the taxing tribunal either exceeds its jurisdiction hy following some plan ' forbidden by statute, or through wilful intent or desire to oppress some class of taxpayers designedly makes an unequal and disproportionate valuation, or conspires to disregard a clear mandate of law, resulting in injustice to a class or classes of taxpayers, or an in-, dividual taxpayer, courts will extend such relief as is best fitted to correct the wrong. If the facts concerning the alleged scheme .or plan to impose upon the hank stock of the state an unjust share of the public burden, involving action by the state hoard of equalization in deliberately and intentionally equalizing bank stock at 40 per cent, of its value while intentionally equalizing valuation of all other property at not exceeding 3 3 1-3 per cent., as is confessed hy the demurrer to the complaint, a legal right of respondents was infringed.</p> <p>4. Taxation — Assessor and Local Boards — Equalization — State Board — —Remedy.</p> <p>Respondents claim a large share of 'property was assessed at less than one-third its value, and while complaining of the action of assessor and city board of equalization, concede the city hoard equalized the assessment as returned to it and left their property at one-third; they do not object to this, hut plead they offered to pay same and they bring the money into court. Held, in an action to enjoin the collection of an increased assessment, on these facts, it is unnecessary to consider the action of any officer or board except the state hoard of equalization, such hoard alone having wronged respondents.</p> <p>5. Disproportionate Assessment — Remedy Sought Not Applicable-Equalization by State Board — Statutory Provisions Construed.</p> <p>• As the complaint shows that respondents asked the state hoard of equalization to equalize values by raising assessed values of all properties, as returned, to the full and true value, they were asking it to do that which they must have known it could not legally do. The court takes judicial notice that to raise valuation of all assessed property from 33 1-3 or 40 per cent, to 100 per cent, thereof would increase the total assessed valuation many times the $3,000,000.00 statutory limitation. The constitution does not require a full valuation, it does guarantee equality. The statutory provisions (Pol. Code, Sec. 2076 et seq.) looking to full valuation must give way to provision directly limiting state board in its power to raise values. Respondents should have asked state board to merely equalize valuations under its own rules; Bagley Elev. Co. vs. Butler, 24 S. D. 429, 123 N. W. 8'66, is not inconsistent with this holding.</p> <p>6. Courts — Interpretation of Decision — Precedent.</p> <p>The holdings of courts should be read in the light of the^ facts before the court for consideration; so held, as to this court’s decision in Bagley Elev. Co. vs. Butler, 24 S. D. 429, 123 N. W. 866.</p> <p>7. Assessment by State Board — Review on Oertiorari.</p> <p>It can hardly be presumed that the state board of assessment, if applied to to perform its lawful duty, would refuse to comply with such request. But if, believing it had the right to equalize assessments by leaving bank stock assessed at. a greater per cent, of its value than other property, it refused to do its duty, its record would doubtless have shown it had exceeded its .jurisdiction in manner of equalizing, using the 33 1-3 per cent, as basis of valuation of all property except bank stock and 40 per cent, as to bank stock. Its action could then have been reviewed upon writ of certiorari. State v. State Board, 3 S. D. 338.</p> <p>8. Taxation1 — Injunction to Restrain Collection of — Unequal and Disproportionate — Not if Injustice Results.</p> <p>Injunction to restrain collection of a tax owing to unequal and disproportionate assessment should only be granted as a last resort, and where no better remedy was or had been available; not when such relief results in injustice less in degree but identical in kind with that sought to be remedied.</p>

Hon. Frank McNulty, Judge. Action by the Roche Realty & Investment Company against The Highlands Company, to enjoin- defendant from obstructing an alleged public highway. Trial to the Court. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Dedication is a common law method of creating public easements. 13 Cyc. of Daw & Prace., 437-8. A dedication differs from a grant in that there need be 1101 grantee in esse at the time of dedication.

Action by Eaura E. Rosekrans against James A. Wagner, to determine adverse claims to land. From a judgment for plaintiff and an order denying a new .trial, defendant appeals. The point we make is this, The action commenced in 1903, wherein the plaintiff set up the same cause of action and rested his claim on the same conveyance under which -this defendant is now claiming is a bar to this action.

Hon. Joseph W. Jones, Judge. Action by PI. J. Henton against N. W. Spencer, for damages for breach of warranty under 'sale of a horse. From a judgment for plaintiff, defendant appeals.

Hon. Erank B. Smith, Judge. Action by Clark Implement Company against Mary J. Wad-den and another, on equity side of court. Erom an order granting a new trial, plaintiff appeals. The court’s decision in this case was made on the 9th day of May, 1911, and not until the 28th day of November following, almost seven months thereafter, was this notice of intention to move for a new trial served. Section 306 of our Code of Civ.

Hon. Arva ETayror, Judge. Action by A. L. Kiokead against Edward Moriarty and another. From an order relieving defendants from a default judgment, plaintiff appeals.

Hon. WiEiam G. Rice, Judge. Proceedings by the State, on the relation of Florence Patterson, against Emery D. Pickering, to compel defendant to support, etc., his alleged illegitimate child. Held: whether by way of dictum or otherwise, that under the law as it then stood six years was the limitation for a bastardy -proceeding.

Hon. Robert B. Tripp, Judge. Action by Fairbanks, Morse & Company against Charles Heihn and others. From a judgment for defendants, plaintiff appeals. 1. That the court erred in allowing the defendants to introduce in evidence upon the trial of said cause as to the operation of the engine of the defendants.

Hon. Frank B. Smith, Judge. Action by Edward King and another against Jacob Heib and another. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Cause stricken from records of the court.

<p>1. Eminent Domain — Damages—Allegations of Complaint — Review.</p> <p>Where demurrer to- a complaint for damages for “damaging” property, based upon location, maintenance and operation of a railroad line and closing of streets not adjacent to .plaintiff’s lots, is under consideration .on appeal from an order sustaining demurrer, all allegations therein not pleaded as grounds for recovery of money judgment, hut which might pertain to equitable relief, are disregarded.</p> <p>2. Eminent Domain — Damages Based on Common Daw — Inherent Bight of Sovereignty — “Taking”—“Damaging” Property— Constitutional Provision.</p> <p>Appellant’s right to damages to his property from location, maintenance and operation of defendant’s railroad and the closing of non-adjacent streets is not based upon Sec. 12. Art. 6 of the Constitution, but upon the common law. Such right, whether the injury flows from a “taking” or a “damaging” of property, is one not coming from the Constitution; the .power of eminent domain being inherent in sovereignty and existing before the Constitution, federal or state, was adopted; such -provisions merely preventing legislatures from invading the right, and granting the right, under -our Constitution, of .preventing the “taking” or “damaging” until recompense is made.</p> <p>3. Eminent Domain — Negligence — Compensation flor Unavoidable Injury — Allegations of Complaint as to Negligence.</p> <p>Exercise of power of eminent domain does not absolve the person or corporation exercising it from liability for negligence either in exercise of the power or in carrying on’ of enterprise after such power is exercised; and the damages, to be recompensed for are only those flowing from injuries unavoidable even by use of reasonable -care, and are ordinarily only such as could be anticipated .by a jury' in the trial of an action brought before the “damage” had .occurred. Held, there being no allegation of negligence in the complaint for .damages ,at bar, no question of negligence is before us, and it is presumed that defendants acted with due care concerning the matters complained of.</p> <p>4. Eminent Domain — Damages from Nuisance.</p> <p>Laws pertaining to damages from private nuisances are unaffected by question of eminent domain; the right to take or damage property under eminent domain only makes that lawful which otherwise would be unlawful, leaving the holder of such right, in so far as taking or damaging of property may infringe upon the superior rights of the owners, liable to compensate for damages flowing from the injury sustained.</p> <p>5. Railroads Not Ordinarily Nuisances — Negligent Operation of.</p> <p>Ordinarily a properly operated railroad is not a nuisance: it can only become a private nuisance when improperly or negligently operated, or when, though properly operated, yet owing to its peculiar location it infringes upon some private right as distinguished from public rights in general.</p> <p>6. Eminent Domain — “Damaged” in Constitutional Provision.</p> <p>The word “damaged” in Sec. IB, Art. 6, of our Constitution in connection with taking or damaging property without compensation, means legal damages; and one making a reasonable use of his property not infringing upon superior rights of others cannot be holden for damages suffered by another flowing from such use. The power of eminent domain does not lessen or increase the rights or liabilities of' the private exerciser of that power as regards damages suffered by another ’ by exercise of the power from what they would be if property were taken or damaged without exercise of such power, except that, for taking or damaging, payment may be required- before the taking or damaging.</p> <p>7. Railroads — Nuisance in Operation — Damages—Allegations of Complaint.</p> <p>Without an allegation of negligence of defendants in management of trains and location and operation of their railroad, it will not he presumed, in an action for damages to plaintiff’s property by location, maintenance and operation, etc., of their road, it will no-t be presumed that such estah-, lishment and operation constituted an- unreasonable use of defendants’ property and rights, amounting to a nuisance, even though the complaint alleges that plaintiff suffered damages, as su-ch damages may result from reasonable use of defendants’ property and rights.</p> <p>8. Railroad — Eminent Domain — Closing Highway — Damages—Complaint.</p> <p>While a railway company has an implied right under eminent domain, to cross a public highway and thus impose a further public use upon that part of the highway, no such implied right to vacate and close part of a highway .on the pretext that it is needed ior railway purposes exists; such v closing would be punishable as a public nuisance; we must therefore presume, in absence from the complaint of an allegation to the .contrary, that defendants did commit a criminal offense, and that the parts of the street closed 'had béen vacated by the municipality.</p> <p>9. Railroads — dosing of Streets — Eminent Domain, Rightful or Wrongful Exercise of Power — Measure of Damages</p> <p>It is immaterial, in determining the actionable nature of damage flowing from exercise of right of eminent domain, whether the damage was inflicted by closing of streets by city at defendants’ request, or whether by the city of itself; and the damages are such only as the city would be liable for upon their vacation, if vacated hy proper action of the city.</p> <p>10. Highways — Private Rights to Use of — Rights of Public.</p> <p>One, whether owner cf land or not, whether citizen or stranger, has a right in common with the public to travel all public highways; which right is disconnected from ownership of land and is not a private property in highways.</p> <p>11. Highways — Right to Use of, as Owner of Land — “Taking or Damaging” Property.</p> <p>One, as owner of land, has a right to access to every part of the land abutting upon a highway, a right resting upon ownership of and connected with and appurtenant to the subject of property; it is therefore a property right, special and distinct from public right, and pertains as well to parts of the highways beyond and not abutting on his property, to afford him reasonable facilities for connection with those highways in which he has no special rights. But any interference with a highway beyond the point where one’s special rights end is not a “taking nr damaging” of property within the rule of damages under Constitution, Sec. 13, Art. 6; and there being no allegation in plaintiff’s complaint that his property was taken or any easement or appurtenant thereto interfered with, or that plaintiff had suffered any damages or injury not common to all the residents of that part of the' city, under no view of the facts as alleged is a judgment in his favor authorized.</p> <p>Corson, J., concurring specially.</p> <p>Haney, J., dissenting.</p>

Hon. Frank • B. Smith, Judge. Action/by James M. Pereles against Christopher Koch and others, to foreclose plaintiff’s mortgage. The defendant Agnes G. Foster claimed title and ownership under a tax deed. From a judgment in favor of Agnes G. Foster establishing her ownership of the land in fee, and cancelling plaintiff’s mortgage, and from an order denying a new trial, he appeals.

Hon. Joseph W. Jones, Judge. Action by Ludwig Seubert against the Fidelity-Rhenix Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Hon. R. R. Tripp, Judge. Action by William B. Wood against the City of Hurley to set aside an assessment for construction of a sidewalk, and to quiet title to the abutting property. From a judgment for defendant, and from an order denying plaintiff’s motion for a new trial, he appeals. In the case of White v. Stevens, (Mich.) 34 N. W. 255, it is held that a finding of necessity is jurisdictional even though the statutes do not require a resolution to that effect.

Hon. Alva E. Taylor, Judge. Action by the First National Bank of West Minneapolis against Lizzie E- Harvey, on .two promissory notes; one made nominally payable to order -of plaintiff, but' having on its back a formal assignment to plaintiff by one Lund; the other payable to the order of. J! G. Lund and purporting to be endorsed by him to plaintiff. Judgment for defendant, and plaintiff appeals.

Hon. LbVJ McGeJJ, Judge. Action by the White River Valley Railway Company and another against M-orris Appel and another, to determine adverse title to land. From a judgment for defendant Margaret Appel, plaintiffs appeal.

Hon. Gborgií H. Marquis, Judge. Action by Thorrias A. Mair and another against E. H. Williams to recover for a balance of account for merchandise, including a heating apparatus.

A-ppeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge. Action by Hugh Smith, trustee in involuntary bankruptcy, ag-ainst the Security Mutual Fire Insurance Company, on a fire insurance policy running to one Satter, the bankrupt. From an •order sustaining a demurrer to the complaint, plaintiff appeals. The very policy in question provides that it shall be void in a great many contingencies, some of which are bound to exist in almost every case.

Hon. Joseph W. Jones, Judge. Action by Hugh Smith, assignee in bankruptcy of one Satter, the insured, and by L,. J. Walker, plaintiff as intervenor, as assignee of the property insured, upon a policy of fire insurance, against the Retail Merchants’ Fire Insurance Company. From a judgment for defendant upon demurrer to the complaint, plaintiffs appeal.

Hon. Josiii’i-i W. Jonds, Judge. Action by Hiram Rice against Irving Bennett, upon three foreign judgments, assigned to plaintiff. From an order directing verdict for defendant, and from a judgment dismissing the complaint on the merits, plaintiff appeals.

Hon. William Williamson, Judge. Certiorari by the State, on relation of S'- B. Cook,' against the Board of County Commissioners of Tripp County and others, to review the action of… Held: there being no city officérs as yet, but such territory being already an organized city — if the vote is cast in favor thereof — such commissioners -are clothed with the power of .-calling and giving notice of the first election for the purpose of electing- the city officers of such city.

Hon. Frank B. .Smith, Judge. Action by Flans Quarnberg against the City of Chamberlain,, a municipal corporation, for damages resulting from an injunction against the construction by plaintiff of an artesian well for water for mill power. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. J. H. Bot-Tum, Judge. Action by Robert B. Fisk and another against Joseph Hicks, to recover attorney’s fees alleged to have been earned for… Held: we believe, that if a suitor would excuse himself on the ground of the negligence of his counsel he must -have employed one practicing habitually in -the court or jurisdiction where the case was brought. Manning v. Roanoke, etc., R. Co., 28 S'. E. (N. C.) 963; Jett v. Herald, ,62 S. W. 264 (Ky.) ; Union Central Life Ins.

Hon. W. G.. Rici$, Judge. Action by Thomas F. Stroud against Samuel Fish, to recover on notes given in payment for a grading machine. Defendant counterclaimed for breach of warranty relating to the machine. From a judgment for defendant and an order denying a new trial, plaintiff appeals. On July ii, 1905, defendant sent $400 on his account, ordered some machine supplies, and made no complaints concerning the operation of the machine. (Abst. fol. 54).

ITon. W. G. Ricr, Judge. George Price, defendant, was convicted of crime, and appeals to Supreme Court. Granted right to comply with rules of court by serving and' filing certain appeal papers in Supreme Court.

Hon. George H. Marquis, Judge. Action by John B. Davis against Michael B. Davis, to recover land claimed by plaintiff as heir, and involving the competency of his father in quitclaiming the land to defendant. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. A mortgage executed by a lunatic after the creation of the debt which it is given to seure, and on the faith of which no new consideration is parted with is invalid.

Hon. Joseph W. Jones, Judge. Action by Sam Cannon, by Ali Hamway, his guardian, against the ■ South Dakota Central Railway Company, for damages for injuries sustained while performing the duties of switch-man. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. An adult unacquainted with the risk of his employment may require instructions or warning as much as a minor.

Hon. R. B. Tripp, Judge. Action by Gust Anderson against Farmers’ Co-operative Shipping & Elevator Company, in replevin for wheat alleged to have been stored. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Arva E. Tayror, Judge. Action by Emil Meyer against G. E. Burmerster, to recover commissions on sale of land. From a judgment for plaintiff, defendant appeals. Implied agency and acceptance of benefits. A mere showing that one has assumed to act as agent is not sufficient to establish the existence of the relation.

Hon. Frank C. McNulty, Judge. Action by Peter Keiser against Nic. W. Klein, for specific performance of a contract for purchase of lands, embracing a homestead. From 'a decree for plaintiff and an order denying a new trial, defendant appeals. The findings and decree also establish the fact that the plaintiff at all times adhered to the theory that the contract was not enforceable as to the homestead.

Hon. R. B. Tripp, Judge. Action by Martin Byrne against William McKeachie, to quiet ■title, and for rents and profits, and a perpetual injunction. From a judgment for plaintiff, on verdicts of jury, defendant appeals. Assignments of Error numbered 18 and 19 may be argued together. They relate to orders made by the court of date July 28, 1911, Record p. 673 and Record p. 673.

Bbn. Arva E. Tayror, Judge. Action by J. E. McNamee against Sarah Burke. Judgment for plaintiff, who appeals for insufficiency of the verdict. According to the record in this case the reasonable value of the service rendered by the plaintiff was $209.90 (Record page 30).

Hon. L/pvi McGee, Judge. Action by Emma M. La Penotiere against Chambers Kellar and another, to quiet title to land. From a judgment quieting title in defendant Kellar, plaintiff appeals. A judgment does not become complete or effective until rendered by the court, attested by the clerk and filed in his office. 127 N. W. 647.

Hon. C. X. Seward, Judge. Action by Gilbert W. Haggart against Arthur Alton and another, to recover upon a city sewer certificate.

Hon. W. G. Rice, Judge. Roy Shephard, the defendant and appellant, was convicted of crime, and he appeals. Leave granted to appellant to serve certain appeal papers on the attorney general and to file certain appeal papers with the clerk of the supreme court. No briefs were filed 'by either party upon this application.

Appeal 'from Circuit Court, Douglas County. ITon. R. B. Tripp, Judge. Action by the McCarthy Brothers Company against James Hanskutt, to recover for balance on an account. From a judgment for defendant, -plaintiff appeals. This is an action at law wherein the jury found (i) That the thousand dollar note was not a payment in full of the account sued upon; (2) That defendant still owed plaintiff on said account the sum of $1,026.82.

Hon. Frank B. SmiTi-i, Judge. Action by James Bryce against Oschner Hardware Company; From an order dismissing an appeal from justice court, defendant appeals.

Hon. Alva E. Taylor, Judge. Action by Rosa Pithan against Emil J. Wangler, to recover damages for alleged breach of promise, and for alleged seduction •by defendant. From an qrder striking out the cause of action for seduction, plaintiff appeals. “An objection to the allowance of an amendment should be made when leave to amend is asked; and in order to avail himself of error in granting the amendment, the party objecting should stand on the ruling, etc.” 31 Cyc. 751.

Hon. Alva E. Taylor, Judge. Action by the First National Bank of Arlington against Abbott Mather, .and Arabella Mather, his wife, as garnishee. From a judgment for garnishee defendant, plaintiff appeals. 1. Not one dollar of money was ever paid by Arabella Mather for said land, to which money she could claim any greater right than her husband; and that it may well be doubted whether any money whatever was ever paid by her. 2.

Hon. C. X. Sbwaed, Judge. Action by -the Minder & Jergenson Land Company against Ole P. Brustuen, for money paid by plaintiff at defendant’s request. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Appellant’s 'brief does not seem to embrace the phases of the case involved in the decision of the Supreme Court on this appeal.

. Hon. Frank McNuuty, Judge. In the Matter of the Estate of Thera Sjurson, deceased.

Hon. C. X. Seward, Judge. Action by Polly R.‘ Sweeney against the United Underwriters Company, for rescission of a conditional sale of corporate stock by defendant to plaintiff, and for recovery back of purchase money. From a judgment for defendant entered upon a directed verdict, and from an order denying a new trial, plaintiff appeals.

<p>1. Criminal Law — Rape—Testimony to Contents of Record — Harmless Error.</p> <p>in a- prosecution tor statutory -rape, testimony of a Catholic priest- that a record of children of his parish showed dates of birth, was harmless error, where objection as to competency of the record to -prove date of birth was not made.</p> <p>2. Rape — “Intercourse” — Penetration--“Sexual Intercourse” — Sufficiency oí Evidence.</p> <p>■Sexual intercourse includes and means sexual penetration; and where evidence shows defendant solicited prosecutrix to enter .a building with him after dusk, told her his desire, said her objection made no 'difference, and had “intercourse” with her, held,- sufficient to warrant a finding of penetration; til* term “intercourse,” under such circumstances, resulted from sexual passions, and meant sexual intercourse.</p> <p>3. Criminal Raw — Statements of Counsel to Jury — Discretion of Trial Court — New Trial.</p> <p>Where statements of state’s counsel to jury in argument were .passed upon by trial court and a new trial refused, -the Supreme Court will not reverse, although such statements were wholly unwarranted by the evidence and merited censure from this and the court below; this Court not believing the statements could'have influenced the jury.</p> <p>4. Criminal Raw — Rape—Exhibiting Child to Jury Outside Courtroom- — Harmless Error.</p> <p>Where defendant’s evidence in a prosecution for rape tended to show that prosecutrix .at time .of alleged offense was a .common prostitute, and that the parentage of any child born to her would be .extremely doubtful, the conduct of prosecutrix and her family in exhibiting her child before members of jury in court house corridors during recess w-as not prejudicial to defendant.</p> <p>5. Criminal Raw — Sufficiency of Evidence — Couclusiveness of Verdict.</p> <p>While under the evidence in a .criminal case different minds might well have reached different' conclusions under the evidence, the Supreme Court will not reverse a verdict rendered under proper instructions, where jury has resolved facts against. defendant. . .</p> <p>6. Criminal Raw — Right o£< Attorneys to Appear Eor State — Record —Presumption.</p> <p>Where the record does not show but wbat counsel for state were the state’s attorney and- his assistant, and shows no objection to -their appearance for state, the Court will presume .there was good and sufficient reason why the state’s attorney could not pro-perly try the case, and that the attorneys (acting in his .place were properly employed by the state. . 1</p>

Hon. Alva E. Taylor, Judge. Action by the Thomas Manufacturing Company against B. F. Lyons and others, for breach of .contract of sale of farm machinery. From a judgment for plaintiff for nominal damages, with costs in favor of defendant, plaintiff appeals. . ■ Appellant’s brief does not seem to embrace the phase of the case upon which the Supreme Court decided it-upon the appeal.

Hon. Frank McNulty, Judge. Action by A. Share against F. S. Coa-ts, to recover commissions on sale of land: From a judgment for plaintiff, defendant appeals. Another reason- why the court erred in directing a verdict for the plain-tiff is that the evidence of the plaintiff, a witness in his own behalf and an interested party in- the case, was wholly uncorroborated, and the credibility of the witness and the weight to be given his' testimony were questions for a jury.

Hon. Frank McNulty, Judge. Action by D. D. Jones against C. M. Hopkins. From an order vacating a default judgment in favor of plaintiff, he appeals. Even though it were conceded that the service of the summons and complaint in this action was not made on May 12, 1908, it would not follow that the judgment should be vacated or set aside. Naming the wrong day in an affidavit of service is a mere irregularity and not fatal. McAuliffe v. Hughes, 112 N. Y. Supp. 486.

Hon. Auva E. Tay'ror, Judge. Action by Annie E. Smith against the Order of United Commercial Travelers of America, to recover on a policy of insurance or certificate of membership in defendant company, issued to plaintiff’s deceased husband. From an order denying defendant’s motion to vacate a default judgment, it appeals.

Hon. Frank McNulty, Judge. Defendant, E. D. Julius, was convicted of violating -the liquor law relating to sales by a registered pharmacist; from which judgment and from an order denying a new trial he appeals. The information was filed under Section 2860 of the Revised Political Code of 1903, as -the -same was finally amended by Chapter 176, page 365, of the Daws of 1907.