Volume 29 — Utah Reports

C. Hall, Judge. Judicial proceedings in tbe settlement of tbe estate of James Bell, deceased. From a decree granting to Ellen R. Quinn Bell, widow of deceased, a third in value of all tbe real estate of tbe estate, Franldin Bell, as executor, appeals. APPELLANT'S POINTS. Section 2731 of tbe Revised Statutes of Utab 1898, provides: That a married man may will away all of bis estate witb tbe consent of his wife in writing.

¥. Stewart, Judge. Action by Mark Kunkel against tbe Utab Lumber Company and another. From an adverse judgment, plaintiff appeals. APPELLANTS POINTS. All of tbe assignments of error may very properly be discussed together for if it be true bis possession being admitted that it was not incumbent on tbe plaintiff to show title or if tbe title be actually did show was sufficient to support tbe action then all the errors are well taken and a new trial must be ordered.

W. Morse, Judge. James Sbocldey was convicted of murder, and appeals. STATEMENT OE EACTS. Tbe defendant was convicted of tbe crime of murder in tbe ■first degree for tbe killing of one Amasa L. Gleason, and was sentenced to be executed.

<p>1. INSOLVENCY — PleadiNG.—The allegation of the complainant, in an action hy a creditor of a firm seeking to follow its property into the hands of purchasers, that the firm is insolvent, raises no question as to its insolvency at the time of the sale.</p> <p>2. Same — Pkestjmption.—In the absence of an allegation to the contrary, it will be presumed a firm was solvent when it sold its property.</p> <p>3. Res Judicata.- — -Matters determined by the judgment of a court of competent jurisdiction cannot be questioned in a subsequent action between the same parties.</p>

<p>Appeal from District Court, Salt Lake County; S. W. Stewart, Judge.</p> <p>Action by Mohr Touse against the Consolidation Eailway & Power Company. Judgment for plaintiff. Defendant appeals.</p>

W. Morse, Judge. Action by tbe Washington Rock Company against Le Grand 'Young and another. From a judgment in favor of plaintiff, defendant Young appeals. Statement of facts. This is a controversy over a lost boundary or survey. The plaintiff is the owner of the northeast quarter of the southeast quarter, and the appellant of the northwest quarter of the southeast quarter, of section 12, township 1 south, of range 1 east, Salt Lake meridian.

H. Hart, Judge. Action by Neal Hern against the Southern Pacific Company and others. Erom a judgment in favor of defendants, plaintiff appeals. APPELLANT’S POINTS. During the impaneling of the jury, one John B. Einn, was called and examined on his voir dire and stated that he had no feelings of bias or prejudice in cases like this, in which plaintiff sues for personal injuries, and that he knew of no reason why he should not sit as a juror in the case.

W. Stewart, Judge. Actions by tbe Oregon Short Line Railroad Company against William R. Jones, Jr., and others. From judgments in favor of plaintiff in each case, defendants therein appeal.

E. Booth, Judge. Suit by the Bonanza Consolidated Mining Company and others against the Golden Head Mining, Company. From a decree finding that neither plaintiffs nor defendant was entitled to the area embraced within certain mining claims, plaintiffs appeal. APPELLANT’S POINTS. The notices of location are indefinite and do not describe any ground, and do not tie to any natural monument or permanent object such as will indentify the claim.

Hart, Judge. Suit by Max Davidson against Edward A. Munsey. From a decree finding defendant guilty of contempt of a decree restraining bim from infringing a certain trade-mark of plaintiff’s, defendant appeals. Affirmed on conditions. ARRELLANAS ROINTS. Tbe affidavits upon which the order to show cause was issued do not state facts sufficient to authorize the court to issue any such order, or to give the court jurisdiction.

Hart, Judge. Action by Lars Peter Christensen against Oregon Short Line Pailroad Company. From a judgment in favor of plaintiff, defendant appeals. appellant’s points.

<p>Appeal from District Court, Third District; T. D. Lewis, Judge.</p> <p>Action, by William NT. Coates, doing business as Coates Bros, against James Metcalf and others. From an adverse judgment plaintiff appeals.</p>

C. Hall, Judge. Separate actions by Emily P. Raleigh against Caroline C. R. Wells and others and by the Mutual Investment Company against Emily P. Raleigh. The actions were consolidated, and from the adverse judgment rendered Emily P. Raleigh appeals.

Action by the Minnie Maud Reservoir & Irrigation Company against Martha Grames. Erom a decree establishing irrigation rights in the waters of a certain creek, plaintiff appeals.

Chidester, Judge. Action by Hannah Peterson against A. J. Crosier. From an order denying a motion to vacate a judgment.in favor of plaintiff, and granting defendant a new trial, he appeals. APPELLANT’S POINTS.

W. Stewart, Judge. Action by John Mackay against Salt Lake City, a municipal corporation. Judgment for plaintiff, and defendant appeals. APPELLANT^ POINTS. Tbe first question to be considered is whether or not the city is liable for the condition of a way not situate within the municipality proper. The undisputed evidence shows that the place in question is anywhere from three to five miles from the business portion of the city. There are no streets opened up out there.

0. Hall, Judge. Proceedings on tbe settlement of tbe estate of John R. Park, deceased. Petition of Annie E. A. Hilton for partition and distribution of decedent’s real estate, to wbicb objections were filed, and from a decree appointing commissioners in partition tbe executor of deceased appeals. APPELLANT'’S POINTS.

W. Stewart, Judge. Action by Ellen Merrill, individually and as guardian ad litem of Virgil Merrill and another, against the Oregon Short Line Railroad Company. Erom a judgment for plaintiffs, defendant appeals. APPELLANT'S POINTS. The issues involved in this action are to be determined in accordance with the law of the State of Idaho, where the accident occurred and the transactions took place out of which the case rose, and the trial court very properly so charged the jury.

Marion-eanx, Judge. Action by Grace L. Leach individually, and as guardian ad litem of Lola Leach, a minor, against the Oregon Short Line Hailroad Company. From a judgment for plaintiffs, defendant appeals^ APPELLANT'S POINTS.

<p>1. Appeal — Bun or Exceptions — Evidence.—Where a finding is challenged on appeal as not supported by sufficient evidence, it must affirmatively appear from the bill that it contains all the evidence or it will be presumed that there was other supporting evidence.</p> <p>2. Same — Showing Presence of all Evidence. — “Testimony” is not the proper word to be employed in a bill of exceptions to show that it contains all the evidence, and to warrant an assignment of error that the evidence is insufficient to support a decision.</p> <p>3. Same — Assignments of Error — Sufficienoy.—Revised Statutes 1898, section 3283, provides that the final decision in an action is to be deemed to have been excepted to. Held that, where a judgment is based on findings of fact, an assignment of error directed against the judgment on the ground that it is not supported by the evidence raises no question as to sufficiency of the evidence to support the findings and presents no question for review.</p>

<p>Appeal from District Court, Weber County; H. H. Ro-lapp, Judge.</p> <p>Action by Mary Elizabeth Ferris against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Sanpete County; Ferdinand Ericksen, Judge.</p> <p>Samuel Rickards was convicted of burglary, and appeals.</p>

llarion-eaux, Judge. Action by tbe Nepbi Irrigation Company against Samuel T. Vickers. From tbe judgment rendered, defendant appeals. respondent’s points. Tbe assignments as to tbe insufficiency of tbe evidence do not point out any particular wherein tbe evidence is insufficient, but is merely an attack upon tbe conclusion of fact, tbat is, tbe general conclusion of tbe court.

Marioneaux, Judge. Action by Edward Elmer against George McCune and ethers. Erorn a judgment for plaintiff, defendants appeal. APPELLANT’S POINTS. TJnder the circumstances of this case, the decree is so uncertain as not to be susceptible of enforcement.

C. ‘ Hall, Judge. Action by Ezra Thompson and others against P. W. Mad-sen and others. Erom a judgment for plaintiffs, defendants appeal. appellant’s points.

Proceedings for the disbarment of Ricey Jones, an attorney. THE EROSEOuTION's EOINTS. In view of the decision of this court upon the demurrer to the accusation, it is, perhaps, unnecessary to discuss the general principles of law applicable to the case.

E. Booth, Judge. Action by John Mitchell against Heber C. Jensen and others, doing business under the firm name of the Southern Utah Mercantile & Lumber Company. From a judgment in favor of plaintiff, defendants appeal. APPELKANT’s POINTS. Tbe testimony of A. J. Lowenberg showed that they had sold the goods sued for to the Southern Utah Mercantile and Lumber Company.

<p>Municipal Corporations — Water Privileges — Exchange—Contracts —Construction—Condition Subsequent. — Where a contract between a city and certain farmers entitled to water for irrigation, for an exchange of water, provided that, in ease the city made default in furnishing the farmers the exchange water from its canal, they reserved the right to use the water they agreed to exchange only during the time the city’s default continued, unless the failure of the city continued for a period of six months, when it should be optional with the farmers to terminate the contract, and the city’s ability to perpetually furnish the farmers the required amount of water in exchange was conceded, such contract provision was a condition subsequent, and did not prevent the city from acquiring an absolute right to the farmers’ water, within Constitution, article 14, section 4, authorizing a city to incur indebtedness for waterworks owned and controlled by the municipality, and article 11, section 6, authorizing a city to exchange water rights for rights which shall be acquired and owned by the city, and be preserved to supply its inhabitants.</p>

<p>1. Mines and Mining — Location or Claims. — Where a mining-claim is a relocation of an older claim, the corners of which are yet substantially in place, and covers the same ground, a location made by posting a notice describing the claim by courses and distances from the discovery monument, made when the ground is covered with deep snow, so that it is impracticable to fully mark the boundaries thereof, is sufficient to entitle the locator to perfect it within a reasonable time or before other parties have acquired rights in the ground, although the boundaries are not sufficiently marked on the day the notice is posted; and such a location is completed and validated by repairing the old monuments and boundaries prior to the intervention of adverse rights by others.</p> <p>2. Same — Relocation—Adoption oe Ancient Monuments. — Where a mining claim is a relocation of a previous claim, the locator may refer to the boundary monuments of the previous location in his notice, and may adopt such monuments by repairing or constructing them where they correspond with the calls in the notice.</p> <p>3. Same — Pailube to Maek Borran Abies — Acobuae of Intervening Bights.' — A locator who has filed his notice, but fails to mark Ms boundaries on the ground, assumes the risk of the accrual of intervening rights of third parties.1</p>

D. ■ Lewis, Judge. Action by the Utah Savings & Trust Company, administrator of tbe estate of James F. Woodman, deceased, against Simon Bamberger. From a judgment for. defendant, plaintiff appeals. . ' ' APPELLANT’’S POINTS.

W. Stewart, Judge. Action by Daniel Hickey against the Eio Grande Western Railway Company. From a judgment for plaintiff, defen-' dant appeals. APPELLANT'S POINTS. The evidence does not show that defendant was guilty of any negligence. The rule is that where horses are frightened by noise incident to the use of engines that the railroad company is not liable, unless the noise was both unnecessary and unusual.

D. Lewis, Judge. Jokn W. Coleman was prosecuted for violating Devised Statutes 1898, section 4427. The court directed the jury to return a verdict of not guilty, and the State appeals.

H. Ro-lapp, Judge. Action by Elizabeth B. Grill and others against Bartholomew Malan and others. • From a judgment in favor of defendants, plaintiffs appeal. STATEMENT OP PACTS. This is an action to determine the title to the waters of ■a certain spring which rises and has its source on plaintiff’s land, and to recover damages from defendants for rock quarried and removed by them from said land.

Salt Lake County; Win. C. Hall, Judge. Two actions, one by John Butter and S. Hays against Allan G. Lamson, and the other by said Lamson against said Butter and Hays. From adverse judgments, Lamson appeals.

D. Lewis, Judge. Action in support of an adverse claim to a mining location by Archibald Stewart, as substituted plaintiff in the place of Daniel Harrington, against the Gold & Copper Company of Bingham. From a judgment in favor of claimant, defendant appeals. APPELLANT'S POINTS. The allegation of citizenship was denied, and where an adverse suit is brought against an application for patent, the government is interested and citizenship must be proved.

Hart, Judge. Action by Thomas Steed against the Rio Grande Western Railway Company. Erom a judgment in favor of plaintiff, defendant appeals. APPELLANT'S POINTS. The undisputed testimony in the case shows that the plaintiff was guilty of contributory negligence in failing to see or hear the approaching train.

H. Ro-lapp, Judge. Proceeding by John T. Thompson and others, as trustees-of the Hooper City Irrigation District, revived by the Hooper Irrigation Company as substituted plaintiff, to punish Thomas McFarland and others for contempt in violating a decree restraining them from interfering with a certain irrigation canal. From a judgment assessing a fine and imprisonment against defendants, they appeal. APPELLANT'S POINTS.

C. Iiall, Judge. Action by Hannan Bros, against T. C. Waltenspiel. Erom a judgment for defendant, plaintiffs appeal. appellant's points.

-Lake Comity; S. W„ Stewart, Judge. Action by Elizabeth M. Tuckfield, „ administratrix of the estate bf Charles B. Tuckfield, deceased, against Samuel E. Crager. Erom a judgment for plaintiff, defendant appeals. APPELLANT^ POINTS.

E. Booth, Judge. Action by Elizabeth Brereton, substituted by Mary Ellen Brereton, executrix of the estate of Bichard Brereton, deceased, against James K. Pierpont and another. . Erom a judgment in favor of defendants, plaintiff appeals.

Marion-eaux, Judge. Action by the Grand Central Mining Company against the Mammoth Mining Company. From a judgment in favor of plaintiff, defendant appeals. appellant's points.