Volume 3 — South Dakota Reports

Action by the Sioux Falls National Bank against William McKee to foreclose a chattel mortgage. Judgment for plaintiff. Application by the defendant for a writ of certiorari to review the proceedings of the Minnehaha county court.

<p>Appeal from circuit court, Pennington county. Hon. John W. Nowlin, Judge.</p> <p>This appeal was taken by the defendants from tbe judgment entered in tbe court below in tbeir favor. Tbe arguments and authorities adduced by tbe respective parties are practically tbe same as those in Gorman Min. Co. v. Alexander et al., 2 S. D. 557, 51 N. W. 346.</p>

This case was first before this court at the April term, 1891, upon a motion to dismiss the appeal. The motion to dismiss was allowed. 2 S. D. 220, 49 N. W. 97. In this opinion, while the court considers the merits of the appeal, the former opinion is adhered to. The judge of the eighth circuit had no power to hear and determine in his own circuit a proceeding of the seventh circuit. Section 29, art. 5, Const.

Original application by Eugene Cutting, as city treasurer of Pierre, Hughes county, for a writ of mandamus to compel Louis O. Taylor, as state auditor, to issue certain warrants. The facts are fully stated in the opinion. No briefs filed.

Original fiction by D. E. Collins against the state to recover for services as state veterinary surgeon. The repeal' of a law by implication is not favored by the courts.-2 Barb. 316; Naylor v. Field, 29 N. J. 287; State v. Berry, 12 Iowa, 525; Dodge v. Ludley, 10 Ohio, 177; State v. Com., 37 N. J. 240; Atty. Gen. v. Railroad, 35 Wis. 425; Rounds v. Waymart, 81 Pa. St. 395; Henderson’s Tobacco, 11 Wall. 652; Atty. Gen. v. Smith, 1 Wis. 525; Somerset v. Jones, 74 Pa.

Hon. Edwin White, Judge Information charging defendant with keeping and maintaining a common nuisance. Defendant demurred to the information. Demurrer sustained. The state brings error to this court. The facts are fully stated in the opinion. There must be a plain and manifest conflict between a statute and the constitution to make the former void. Cooper v. Tellfair, 4 Dal. 18) State v. Morgan, 48 N. W. 314.

This case was decided at the October term, Í891, of the court, and is reported in 2 S. D. 285. Appellant petitions for a rehearing. If the manner in which the excavation was made was not the proximate cause of the injury the plaintiff cannot recover. Raich v. City, 66 Ain.

Hon. Frank E. Aikens, Judge. Equitable action to foreclose a mortgage. Defendant demurred to complaint. Overruled. Defendant appeals. The facts are stated in the opinion. The holder of the legal title should be made a party to the action to foreclose. Pom. Eem. & Eem. Eights, §§ 330, 334 and 336; 3 Waits, Act. & Def. 417; Valentine v. Euea Nelson, 14 How.

Hon. J. O. Andrews, Judge. Criminal action for usury. Verdict against the defendant. Defendant appeals. The facts are stated in the opinion. The state has no criminal jurisdiction or control over a creature of the United States laws except as granted by congress.

Hon. Edwin T. White, Judge. Criminal action for violation of state banking law. Defendant demurred to information. Sustained. Plaintiff appeals. Tbe facts are fully stated in tbe opinion. When a state adopts a particular statute from another state its judicial, construction in the parent state is also adopted.

Hon. E. Parliman, Judge. Action for rent. Judgment for defendant. Plaintiffs appeal. The facts are stated in the opinion. The covenant of quiet enjoyment in a lease relates only to the possession of the premises, and there must be an eviction to constitute a breach of the covenant. Taylor, L. & T. §§ 201, 305, 308, 380, 381; Wood on.Nuisances, § 256; Ogilvie v. Hull, 5 Hill, 51; 3 Sutherland on Damages, 117; Royee v. G-ugenshein, 100 Mass. 203; Noble v. Warren, 3(8 Fa.

<p>Appeal from circuit court, Kingsbury county. Hón. J. O. Andrews, Judge. . ■></p> <p>Action, for balance of unpaid salary. Judgment for plaintiff. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

E. Parliman, Judge. Action for balance due upon a contract for grading a street. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. A written contract cannot be modified by oral testimony. Dill. Mun. Oorp. §§ 445, 450; Memphis v. Brown, 87 U. S. 289. Contemporaneous parol evidence is admissable to explain uncertain or ambiguous written contracts. Osborne v. Stringham, 1 S. D. 406.

Action for damages to property by fire negligently caused by defendant. Judgment for plaintiff. Defendant appeals. Tlie facts are stated in tlie opinion. Evidence that tlie engine was in good order, had modern appliances to prevent sparks and was run with usual care, rebuts the presumption raised by the fire having been set by it. Kelsey v. Bailroad, 46 N. W. 207; White v. Id. 47 N. W. 146; Bailroad v. Anderson, 20 Mich. 244; Johnson v. Bailroad, 48 N. W. 227.

<p>1. The test of a counterclaim is whether the defendant could have maintained an independent action on the demand as set forth in it.</p> <p>2. A counterclaim must contain all the substantial averments necessary in a complaint based upon the same cause of action.</p> <p>S. When there is nothing in any of the matters relied on as a counterclaim upon which a separate suit can be maintained, it must be held to be defective upon demurrer.</p> <p>4. Facts must be stated which constitute a cause of action against the plaintiff, and its sufficiency must be governed by the same rules as if the defendant had brought suit against the plaintiff.</p> <p>(Syllabus by the Court.</p>

Hon. Frank R. Aikens, Judge. Action to compel specific performance of contract for sále of land. Judgment for plaintiffs. Defendant appeals. The facts are fully stated in the opinion. A mortgage without acknowledgment is good as against the 'grantor. Sections 3245, 3246, 3269 and 4368, Comp.

Hon. Frank E. Aikens, Judge. Action to assert a joint mechanic’s lien upon the premises of the defendants. , Defendants objected at the trial to the introduction of any evidence,, for the reason that the complaint did not state facts sufficient to constitute a cause of action. Sustained and judgment entered for defendants. Plaintiffs appeal. The facts are stated in the opinion. A joint mechanic’s lien can be filed where one person owns all the buildings and premises.

Hon. Frank R. Aikens, Judge. Motion to dismiss an appeal. The facts are stated in the opinion. A conveyance of the homestead by a husband to his wife is not invalid because the wife does not join in the deed of conveyance. Sections 2451, 2590, Comp.

Hon. E. G-. Smith, Judge. Action in justice court in forcible entry and detainer. Judgment for plaintiff. Defendant appealed to circuit court. Appeal dismissed. Defendant appeals from judgment of dismissal. Tbe facts are stated in tbe opinion. Sections 6132, 6136, Comp. Laws are not mandatory. Sutb. Stat. Const. § 446; Harris v. Watkins^ 40 N. W. 536; Bonesteel v. Gardner, 1 Dak. 377; Cody v. Anson, 4 Wis. 244; sections 5235, 6144, Comp.

Hon. Frank R. Ax kens, Judge. Action against sheriff for conversion.' Defendant answered, justifying under an execution. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion. A demand must be made when a party has lawfully come into possession of personal property before an action of trover or conversion will lie.

Hon. Frank R. Aikens, Judge. This was an action upon an undertaking against loss or decrease in rents. Defendants’ demurrer was overruled in court below, and on appeal was reversed. Remanded, with order that it be dismissed and judgment be entered against plaintiff for costs. The judgment for costs was satisfied. Respondent was then allowed by court below to file an amended complaint, from which order defendants appeal. The facts are stated in the opinion.

Hon. John Wood, Judge. Action to recover for work and labor. Judgment for plaintiff on default. Defendant moved to set aside the judgment. Motion denied. Defendant appeals. The facts are stated in the opinion. ’ The complaint alleging that the defendant is indebted to plaintiff merely states a conclusion, and not facts from which the law will imply a liability on the part of the defendant.

Hon. D. Haney, Judge. ■Action to recover for goods sold and delivered. Defendant answered, alleging payment to plaintiffs’ agent. Upon motion the court directed a verdict for defendant. Plaintiffs appeal. The facts are stated in the opinion. A witness may be cross-examined on all points, material to the issue. Ireland v. Railroad, 44 N. Y. 426; Graham v. Larimer, 43 Pac. 286; Sharp v. Hoffman, 21 Pac. 846.

Hon. Frank R. Athens, Judge.- Action against the board of supervisors of Sioux Falls township, to set aside their proceedings in appropriating money to improve certain highways. Judgment against the hoard. Defendants appeal. The facts are stated in the opinion. The supervisors are the general agents of the town, have charge of all its affairs, have general management of highways ,and authority to appropriate and expend money for their care and maintenance. Comp.

Hon. John W. Nowlin, Judge. Action to recover on county warrants. Defendant answering denied the allegation of ownership and pleaded the statute of limitations. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. . • The statute of limitations applies to counties as well as individuals. Wood, Limit.

Hon. Frank R. Aikbns, Judge. Action to recover $412 on a promissory note. The defendant answering set up a counterclaim,’ that at the time he executed the note he gave the plaintiff notes amounting to $1,150 and a mortgage securing them as collateral, with the agreement that the bank should collect them and apply the proceeds upon the note in question. That by its negligence said notes and mortgage were not collected and had become worthless. Judgment for defendant.

Hon. J.. O. Andrews, Judge. Application to set off mutual judgments. After notice to respondent Ms attorney served appellants with, notice that he claimed a lien upon the judgment. The court deMed plaintiffs? application except as to the balance of the judgment over and above the amount claimed by the attorney. From this order the plaintiffs appeal. The facts are stated in the opinion.

Action by C. H. Dalbkermeyer against Nicholas Scholtes and Laurenz Halbritter. There was judgment for defendants, and plaintiff’s appeal was dismissed. From a taxation of costs plaintiff appeals. The facts are stated in the opinion.

Original proceedings in mandamus on the relation of A E. Hitchcock against Edward F. Hewitt and others, as members of the board of regents of education, to compel them to restore him to the office of trustee of the agricultural college. The facts are stated in the opinion. Mandamus is the proper form of proceeding to correct a wrongful removal from office and to restore the party removed. High Ex. Leg. Bern. 68; section 5517, Comp.

App.eal from circuit court, Moody, county, Hon. Frank R.. Aikens, Judge. • Action fpr damages for breach of contract. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. An attorney in Ms argument to the jury must confine Mmself to matters wMch are in evidence, and it is reversible' error for Mm to mention and comment upon facts not in evidence wMch would tend to prejudice the jury..

Hon. D. Haney, Judge. Opinion upon rehearing. The judgment of the court in 2 S. D. 17 is reaffirmed. The manner in which a party treats one who apparently acts as his agent and holds him up before third parties is a sufficient implication of an agency. Lowell v. Williams, 125 Mass. 439; Houghton v. Maner, 55 Mich. 323; New England v. Addison, 15 Neb. 335; Wilcox v. Railroad, 24 Minn. 269; Griggs v. Seldon, 58 Vt. 561; Walsh v. Insurance Co., 73 N. Y. 5.

Hon. H. G. Fuller, Judge. Action to enforce a contractor’s lien for lumber and material furnished defendant A. H. Fitch by plaintiff under the mechanic’s lien law of the state. Defendants Basil J. Templeton and the Pierre Savings Bank demurred to the complaint. Overruled. Defendants appeal from the order overruling the demurrer. The facts are stated in the opinion. The lien depends on the affidavit and statement of account filed for record.

Hon. F. R. Aikbns, Judge. Action to recover on a guaranty of collection and payment of county warrants. Judgment on demurrer for defendant. Plaintiff appeals. The facts are stated in the opinion. Where a complaint contains the elementary constituents of a good cause of action, a demurrer will’not be sustained. 1 Boone, Code PL §§ 33, 53, 55; Waite’s N. T. Ann. Code, 235. On demurrer all reasonable intendments will be made in support of the pleading demurred to.

Hon. F. R. Aikens, Judge. Proceeding to punish defendant for contempt in violating an injunction order of the court. Defendant adjudged guilty, and was punished by fine and imprisonment. Defendant appeals. The facts are stated in the opinion. Chapter 101, Laws of 1890, is unconstitutional as a whole, for the reason that the title of the act and the act itself embraces two distinct subjects, viz., prohibition and regulation.

Hon. E. PARRIMAN, Judge. Action of claim and delivery to recover certain chattels. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. In rescinding a contract the party must restore everything of value which he has received under it, or offer to do so, on condition that the other party do likewise. Sections 3226, 3229, 3589 and 5591, Oomp. Laws; Ahrens v. Adler, 33 Cal. 608; Rogers v. Rogers, 53 Wis. 36.

Hon. Frank R. Aikens, Judge. Action to recover for work and labor done under contract. Defendant answered, alleging full payment, and setting up a counterclaim for damages for unskillful work. Judgment for defendant. Plaintiff appeals. Tbe facts are stated in the opinion. Where one party to a contract has completed his part, it is the duty of the other, without demand, to complete his. Barney v. Bliss, 1 D. Obip. 377; Smith v. Loomis, 7 Conn. 110.

Hon. H. G-. Fuller, Judge. Action to recover money paid to respondent county for an exclusive ferry privilege, because the county could not grant such exclusive privilege. Defendant demurred, on the grounds that the complaint did not state facts sufficient to constitute a cause of action. Sustained. Plaintiff appeals. The facts are fully stated in the opinion. The legislative power of a territory cannot grant special privileges. Rev. Stat. TJ.

Hon. J. O. Andrews, Judge. Action to recover the value of a stock of merchandise levied on and sold by the'defendant sheriff under attachment. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. It is reversible error for the defendant to be allowed to mingle with the jury in their room and hold conversation with them during their deliberations. Cattle v. Cattle, 19 Am.

Hon. H. G-. Fuller, Judge. Action in claim and delivery for the possession of mortgaged chattels, for the purpose of foreclosing a mortgage. Defendant answered alleging full payment of the debt. The appellant’ herein, as a judgment creditor of the defendant, intervenes, and answering alleges that the mortgage has been paid. Upon trial the court struck out all the testimony given in behalf of the intervener and directed a judgment against her. The intervener appeals.

Action to establish and foreclose a mechanic’s lien. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. The description of the property in a mechanic’s lien must not be vague and indefinite. Section 5476, Comp. Laws; Sedg. & Wait, Trial of Title, § 462; Freeman, Exec. §§ 281, 330; Phil. Mech. Liens, § 380; Bosworth v. Famholz, 3 Iowa, 87; Head v. Jones, 13 Wis. 718; Inman v. Crawfordsville, 72 Ind.

Hon. J. O. Andrews, Judge. Action to recover tbe possession of personal property. Judgment for plaintiff. Tbe defendant De Witt appeals. Tbe facts are stated in tbe opinion. A new cause of action cannot be set up as an amendment after trial. Railroad v. Fibbils, 11 How. Pr. 168; Saltus v. Gennin, 19 How. Pr. 390; Egbert v. Wicker, 10 How. Pr. 193; Ford v. Ford, 35 How. Pr. 321; Woodruff v. Drake, 31 How.

<p>Appeal from county court, McCook county. Hon. A. C. Biernatzki, Judge.</p> <p>This was an action in claim and delivery by mortgagee for property covered by a chattel mortgage. Defendant answered setting up a statutory lien as feeder and agister. Judgment for defendant. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>Liens have only such force and effect as the statute gives them. Miller v. Anderson, 1 S. D. 539. At common law the agister has no lien upon the animals agisted. Miller v. Marsten, 56 Am. Dec. 694; Whitlock v. Hurd, 48 Am. Dec. 73; Lewis v. Tyler, 23 Cal. 364; Wills v. Barrister, 36 Vt. 220. In the absence of any statute upon the question, a lien reserved by contract supersedes one given by law. Mathews v. Sellers, 86 Pa. St. 486; Hanna v. Phelps, 7 Ind. 21; Pinney v. Wells, 10 Conn. 103; sections 4326, 4335, Comp. Laws.</p> <p>A recorded chattel mortgage gives a lien superior to an agister’s lien. McGhee v. Edwards, 87 Tenn. 506; 13 Am. & Eng. Ency. Law, p. 956; Bank v. Lane, 22 Neb. 68; Easter v. Gayne, 51 Ark. 222; Hanch v. Ripley, 26 N. E. 70; Jackson v. Kasseal, 30 Hun, 231; Charles v. Neggleson, 15 HI. App. 17; Sergeant v. Hsher, 55 N. H. 287; Hammond v. Davidson, 126 Mass. 294; Bissell v. Pearce, 28 N. Y. 252.</p> <p>An exhibit attached to a complaint forms no part of the complaint Aultman v. Siglinger, 2 S. D. 442. The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to make it in the court below, but may be raised for the first time upon appeal. Hallock v. Jaudin, 34 Cal. 167; Porter v. Booth, 1 S. D. 558. The appellate court, in the absence of a motion for a new trial in the lower court, will not examine the question of the sufficiency of the evidence to support the verdict of findings. Pierce v. Manning, 2 S. D. 517. A motion once heard and decided cannot be renewed in the same court upon the same facts without leave of the court. Jeansch v. Lewis, 1. S. D. 609. A prior recorded chattel mortgage is inferior to the lien of the agister. Case v. Allen, 21 Kan. 217.</p>

Application to the supreme court by William H. Gleckler to settle a bill of exceptions in an action brought by William F. Baird and others against the appellant in the county court of Hughes county.

<p>Appeal from circuit court, Kingsbury county. Hon. J. O. Andrews, Judge.</p> <p>Motion to dismiss appeal.</p>

Hon. Frank B. A ikens, Judge. Action for services as surveyor in surveying certain roads and highways. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. All section lines in this state are public highways. Sections 1189, 1191, 1263, Comp. Laws. Public officers have all the incidental powers necessary to enable them to carry into effect their express powers.

Application by the city of Huron for a writ of mandamus to compel A. W. Campbell, as circuit judge of tbe fifth judicial circuit, to vacate and set aside a certain injunction. The facts are fully stated in the opinion. No briefs filed.

<p>¡Rule 4 of the supreme court provides that, if notice of appeal be not served ' 30 days before the first day of the next succeeding term of the supreme court, the cause shall not then be tried, unless, when there is a shorter service, the respondent shall within five days after service give appellant notice that he will insist on the hearing at such term. H> Id. that a respondent could not obtain a hearing at the next succeeding term, where the notice of appeal was served on the first day of such term.* '</p>

Hon. A. W. Camp bell, Judge. Action to recover certain property claimed by plaintiffs to be personalty. Plaintiffs bad judgment. Defendants appeal. Tbis opinion is upon tbe merits of tbe case and upon a motion made by plaintiffs to dismiss tbe appeal. Tbe facts are stated -in tbe opinion. ■ Tbe lien stipulated in tbe lease is valid against tbe tenant and those having notice of tbe contract.

Hon. D. Haney, Judge. Action of trover to recover the value of certain personal property. Plaintiff had judgment. Defendant appeals. The facts are stated in the opinion. Novation is a substitution of a new obligation for an existing one. Section 3487, Comp. Laws; Guichard v. Brand, 15 N. W. 764; Glover v. Dowagiae, 12 N. W. 867.

Gertiorari by the state on the relation of the American Express Company to review the proceedings of the state board of equalization and assessment, in assessing the property of relator for taxation for the year 1891. The facts are stated in the opinion. A writ of certiorari is the proper remedy to invoke in this case. Section 5507, Comp. Laws.

Application by Arthur L. Carter for a writ of prohibition to restrain Armond O. Ringsrud, as secretary of state and ex officio commissioner of public printing, from awarding and letting a contract for public printing on certain terms and to certain parties. The facts are fully stated in the opinion. No briefs filed.

Application by J. A. Lucas, chairman, etc., and others, for a writ of mandamus to compel A. O. Ringsrud, secretary of state, to file in his office the certificate of nominations made by the Prohibition party in the state of South Dakota.

<p>An assignee for the benefit of creditors, in the absence of peculiar facts, has no such interest in the “matter in litigation” as entitles him to intervene to defend a purely personal action against his assignor.</p> <p>(Syllabus by the Court</p>

Action by Harry H. Latham & Co. against the State Bindery Company on three promissory notes. Before a trial was had, defendant made an assignment to Eoyal F. King for the benefit of its creditors. The assignee, as such, asked for an .order to be permitted to intervene, which was denied, and he appeals.

This case was first determined in this court, Sept. 7,1892. The opinion thereon is found in 3 S. D., 290, 52 N. W. 1093. Respondent's attorneys petitioned for a rehearing, which the court in this opinion denies.

Hon. C. M. Thomas, Judge. Action by plaintiff, as administrator of the estate of the decedent, against the Black Hills & Fort Pierre Railroad Company for causing the death of the decedent. Verdict for plaintiff. A motion in arrest of judgment was denied and judgment entered for plaintiff. Defendant appeals. The facts, are stated in the opinion. At common .law no action for injury to the person survives the death of the person receiving them.

Hon. John E. Oakland, Judge. Action to recover the possession of certain real property. Defendant bad judgment. Plaintiff appeals. The facts are stated in the opinion. The instrument purporting to be a will in this case was at best a mere proposal, which, unaccepted, was revoked by the death of the maker. Sections 3310, 3313, 3318, 3517, 3522, Comp. Laws; Whart. Con. Laws, § 645; Story, Con. Laws, § 474; Kerr v. Moore, 9 Wheat. 565; Jones v. Bóbinson, 17 Ohio St. 171.

Hon. J. O. Andrews, Judge. Action to cancel a mortgage and to enjoin its foreclosure. A motion by defendant to dissolve a temporary injunction was overruled. Defendant appeals. The facts are stated in the opinion. A court of equity will grant an injunction to prevent the creation of a cloud on title, but will not grant an injunction to restrain an act which cannot create a cloud.

Hon. E. G. Smith, Judge. Action against the defendant railroad company for causing the destruction of plaintiff’s property by fire. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. Where a juror is shown to have feeling for- or against a certain party he should not be permitted to sit in judgment upon that party. Section 5040, Comp. Laws; Thomp. Trials, 65.

<p>1. When the record shows that an appeal has been taken more than six months previous to the opening of a term of this court, and the appellant has prepared no abstract or brief, nor taken any steps towards prosecuting the appeal, nor shown any good reason why he has not done so, the appeal will be dismissed, upon the respondent’s bringing up the record and moving for that purpose.</p> <p>2. Whenever the record of a cause clearly shows upon its face, or from facts clearly deducible from it, that the appeal, was taken for delay, and to hinder and delay the collection of the judgment, the 10 per cent damages authorized by subdivision 5, § 5187, Comp. Laws, will be assessed, when the motion to dismiss states that such damages will be insisted upon in the hearing of the motion.</p> <p>(Syllabus by the Court.</p>

<p>Appeal from circuit court, Pennington county.</p> <p>Motion to dismiss appeal.</p> <p>No briefs filed.</p>

<p>Appeal from Pennington county court.</p> <p>Motion to dismiss appeal allowed. No briefs filed.</p>

<p>Appeal from circuit court, Pennington county.</p> <p>Motion to dismiss appeal.</p> <p>No briefs filed.</p>

Application to the supreme court, under Comp. Laws,.§ 5086, by John M. Severson against the Milwaukee Mechanics’ Mutual Insurance Company, to direct the manner of settling a bill of exceptions. The facts are fully stated in the opinion. No briefs filed.

This case was appealed to this court by the defendant from a judgment entered in the court below decreeing a specific performance of a court for the sale of certain real estate. In an opinion filed June 2, 1892, 3 S. D. 110, 52 N. W. 586, this court affirmed the judgment of the lower court. Defendant petitions for a rehearing. Mortgages of reál property may be acknowledged or proved, certified and recorded, in like manner and with the same effect as grants thereof.

Hon. J. O. Andrews, Judge. Action by the plaintiff as assignee for the benefit,, of, creditors against the defendant as sheriff to' declare a deed of assignment valid and to restore property. Plaintiffs had judgment. Defendants appeal. The facts are stated in .the opinion. If the law commands or prohibits a thing to be done equity cannot enjoin the contrary or dispense with the obligation. 1 Story, Eq. Jur. § 64; Pom. Rem.

Hon. J. O. Andrews, Judge. Action against Brookings county to recover money erroneously paid by a purchaser at a tax sale for a tax certificate. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. A demurrer admits the allegations of the complaint according to their legal effect. Territory v. Hauxhurst, 3 Dak. 205. A sale by the treasurer of land after the tax has been paid is a tort for which the treasurer and not the county is liable.

Hon. John W. Nowlin, Judge. Action by Wallace W. Pinkerton against Kelly Le Beau and James Haft to foreclose a lien for materials furnished under the mechanic’s lien law. Judgment was rendered in favor of plaintiff against both defendants, and defendant Haft appeals. The facts are stated in the opinion. Only the actual parties to the contract for furnishing the work and materials can maintain a mechanic’s lien: ■ Comp: Laws, § 5469; 2 Jones, Liens, § 1393; Phil. Mech.

Hon. Frank R. Aikens, Judge. Action to recover for breach, of contract. Plaintiff had judgment. Defendant appeals. The facts are stated in the opinion. In the sale or exchange of personal property the vendor in possession warrants the title which he assumes to transfer to the vendee. McCoy v. Artcher, 3 Barb. 323; Castigan v. Hawkins, 22 Wis. 77; Davis v. Smith, 7 Minn. 328; Scott v. Hix, 62 Am.

<p>1. Const, art. 11, § 1, provides that the legislature shall provide for an annual tax to defray the ordinary expenses of the state for each year, not to exceed in any one year two mills on each dollar of the assessed valuation; and whenever such ordinary expenses shall exceed the income of the state for such year, the legislature shall provide for levying a tax for the ensuing year, sufficient, with the other sources of income, to pay the deficiency of tlie preceding year, together with the expenses of such ensuing year; and for the purpose of paying the public debt the legislature shall provide for levying a tax annually, sufficient to pay the annual interest and the principal within 10 years, provided that the annual tax for the payment of the interest and principal of the public debt shall not exceed in any one year two mills on each dollar of the assessed valuation. Held, that the provision relates to three distinct items of taxation: (1) The annual tax for “the estimated ordinary expenses of the state;” (2) taxation to pay deficiencies from preceding years; (3) taxation to pay the public debt.</p> <p>2. The legislature is limited to a two-mill tax for the first and third items mentioned; but when a deficiency is shown to exist, resulting from the excess of ordinary expenses over the fund available for that purpose, the legislature has power to levy an assessment sufficient to meet the deficiency, without regard to the .two-mill limitation, and the money raised for such deficiency must be used exclusively for its payment, and cannot be diverted to any other use.</p> <p>3. Const, art. 11, section 8, provides that “no tax shall be levied, except in pursuance of law, which shall distinctly state the object of the same, to which the tax only shall be applied.” Art. 32, section 2, provides that “the general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative, and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the legislature.” Held, that the two-mill limitation applies only to the items embraced within the “general appropriation bill,” Which items constitute the “ordinary expenses,” within the meaning of article 11, section 1, but as to “all other appropriations” to meet the extraordinary expenses of the state the legislative power is controlled only by their sense of justice, as expressed by a two-thirds vote of all the members of each house.</p> <p>4. A law providing for the levy of a tax for an extraordinary expense must clearly state its object, and the tax so raised cannot be diverted to any other use.</p> <p>(Syllabus by the Court.</p>

Hon. Frank E. Aikens, Judge. Action by Max Landauer and others against Judson V. Conklin and Oscar Holden to set aside an assignment for the benefit of his creditors made by Holden to Conklin. There was a judgment dismissing the complaint, and plaintiffs appeal. The facts are stated in the opinion. A judgment not supported by proper findings will be reversed on appeal. Doty v. Sumner, 12 Neb. 378; Demming v. Weston, 5 Wis. 236.

Hon. Charles M. Thomas, Judge. This cause was first argued in this court at the February term, 1890. Held: 35 N. W. 623; Wright v. Mahaffy, 40 N. W. 113; Koons v. Millett, 23 N. E. 95. A mere irregularity in the taking of an appeal is waived by the voluntary appearance of the appellee.

Hon. E. G-. .Smith, Judge. Action by James Hroch against the Aultman & Taylor Company. There was a judgment for plaintiff, and his attorneys filed .a lien for their services. On motion, plaintiff’s judgment, less the amount of the attorneys’ lien, was set off against a judgment in favor of defendant and against plaintiff and Richard Perkins, .and defendant appeals. The facts are fully stated in the opinion.

Hon. John W. Nowlin, Judge. Action by Samuel Scott and Josiah R. Reasor, copartners as Scott & Reasor, against Amelia B. Clark, administratrix of the estate of John R. Clark, deceased, made'defendant by order of-court, to recover for services rendered in selling the real estate of deceased. From a judgment for plaintiff defendant appeals. The facts are fully stated in the opinion.

Hon. J. O. Andrews, Judge. Tlie facts are fully stated in the opinion. Where a statute prescribes when terms of court shall be held the judge cannot call and hold a regular term at another date. Watkins v. Wassell, 20 Ark. 410; Suth. Stat. Const. § 325; Myers v. Mitchell, 1 S. D. 249. The proceedings at a term so irregularly called are void.

Hon. Cha bt.es H. Thomas, Judge. Action by Eugene Holcomb and. others against John A. Keliher, treasurer of Pennington county, to enjoin the collection of a tax erroneously assessed against the property of plaintiffs. From a judgment for defendant plaintiffs appeal. The facts are stated in the opinion. If an assessment is imposed without jurisdiction it is void. Brencher v. Village, 4 N. E. 272. Congress has absolute authority over the territories of the United States.

Hon. J. A. Hughes, Judge. Proceedings by tbe state against L. D. Sweetland for contempt of court. Defendant was adjudged guilty of contempt, and brings error. Tbe facts are stated in tbe opinion. Tbe proceedings of a lower court in a contempt proceeding may be reversed by tbe superior court. 7 Cal. 176,. 42 N. W. 598; 13 Neb. 445 ; 90 N. Y. 407; 46 Obio St. 473 ; 20 Wall. 387; 13 Cal. 337; 18 Kan. 72; section 2, art. 5, Const.

Hon. A. W. Campbell, Judge. Proceedings by'the state against Daniel Knight and Daniel Hubbard to compel defendants to show cause why they should not be punished for contempt for disobeying an order of court. Defendants were adjudged guilty of contempt, and bring error. The facts are stated in the opinion. A judgment punishing a party for willful disobedience to an order made in a civil case is in its nature a criminal proceeding.

Hon. A. W. Cajkp-I1ELL, Judge., Action to recover damages for killing plaintiff’s borses. Plain,tiff bad judgment. Defendant appeals. Tbe facts are stated in tbe opinion. Tbe defendant having rebutted tbe evidence of tbe plaintiff and shown that there was no negligence on tbe part of defendant, it was entitled to a verdict. Valkman v. Ry. Co., 5 Dak. 69; Gay v. Ry. Oo., Id. 519; Pattee v. Ry. Oo., Id. 267; Huber v. Ry. Oo., 6 Dali. 392.

Hon. A. W. Campbell, Judge. Action by George W. Aldrich and Jacob E. Huffman, partners as Aldrich & Huffman, against Alma E.. Wilmarth, to recover a balance due on a building contract and for extra work. There was judgment for plaintiffs, and defendant appeals. The facts are fully stated in the opinion. It is incumbent upon a party dealing with an agent to ascertain the extent of his power.

Hon. E. G. Smith, Judge. Action by George W. Bailey against tbe Chicago, Milwaukee & St. Paul Eailway Company to recover damages for destroying plaintiff’s trees and shrubbery. From a judgment for plaintiff defendant appeals. The facts are stated in the opinion. The measure of damages for the destruction of standing trees is the difference in the value of the land before and after the trees are destroyed.

Hon. Charles' M. Thomas, Judge. This case was first decided by this court in an opinion filed May 28,1891, reported in 2 S. D. 74. In that opinion the judgment of the lower court was affirmed.

<p>Const, art. 5, § 13, providing that “Tiie governor shall have authority to require the opinion of the judges of the supreme court upon important questions of law involved in the exercise of his executive-powers, and upon solemn occasions,” is confined exclusively to such questions as may raise a doubt in the executive department, — never in the legislative, — and therefore the court will not, on application by the governor, made at the request of both houses of the legislature, construe a section of the constitution which declares the number of votes that shall be necessary for the passage of a law, in anticipation of certain rulings under such section by the presiding officers of the legislature; the question involved being one of piuely parliamentary procedure.</p> <p>(Syllabus by the Court.</p>

<p>Quo warranto by the state ou the relation of Levi McGee against William Gardner to try the title to the office of judge of the seventh judicial circuit.</p> <p>No briefs filed.</p> <p>The facts are stated in the opinion.</p>

- Action for damages for tbe destruction of plaintiffs property by fire. Plaintiff bad judgment. Defendant appeals. Tbe'facts are stated in tbe opinion. Tbe proper measure of damages when standing trees are negligently destroyed by fire is tbe difference between tbe value of tbe realty witb the trees upon it and tbe value of tbe realty after tbe trees were destroyed. Sections 2678, 2679, 2689, Comp.

Hon. J. O. Andrews, Judge. Action by M. A. Heegaard and another, copartners as Heegaard & Co., against tbe Dakota Loan & Trust Company, a corporation, to recover for goods sold and delivered. There was judgment of dismissal, and the plaintiffs appeal. The facts are stated in the opinion. The failure of parties to comply with the law in regard to fictitious names must be pleaded in order that the defendant may take advantage of the defect.

Hon. J. A. Hughes, Judge. The defendant Butts was convicted in the county court of Hand county of disobeying an order of the county superintendent of health, and brings error to this court. After verdict the court should have allowed the defendant time to present a motion for a new trial, after due notice of application. Prude v. People. 5Neb. 382; Dodge v. Id., A Neb. 232; Messner v. People, 45 N. Y. 1.

Hon. H. G~. Fuller,' Judge. This case was decided by this court Aug, 17, 1892. In an opinion found in 3 S. D. 244, 52 N. W. 1062, the court affirmed the’ decision of the lower court. Appellant petitions for a rehearing.

Hon. A. W. Campbell, Judge. Mandamus by the state, on the relation of C. L. Waldo against John A. Fylpaa, county treasurer of the county of Brown, to compel defendant to execute a tax deed to delator. There was judgment granting the mandamus, and defendant appeals. A tax certificate is simply a remedy for the enforcement of a contract, and is subject to all reasonable control by the legislature. Gault’s App. 33 Pa. St. 94.

Hon. H. Or. Fuller, Judge. Action in the circuit court of Hand county to recover money alleged to be due on a contract. The defendant, before the time for answering expired, filed in the United States circuit court for the district of South Dakota a petition and bond for the removal of the case to the United States circuit court.

Hon. A. W. Campbell, Judge. Action by the Huron Waterworks Company against the city of Huron to restrain defendant from taking possession of the waterworks of plaintiff. There was judgment in favor of plaintiff and defendant appeals; The facts are stated in the opinion.

Hon. H. G. Fuller, Judge. Action for divorce. The defendant answered and plead a cross bill for divorce. There was a judgment for defendant upon her cross bill and the court ordered the payment to her of $25 monthly, as alimony. Subsequently an order was made reducing the alimony to the sum of $15 per month. .Thereafter the defendant moved to vacate the last-named order and to increase her alimony to the sum of $25 per month. This motion was denied and defendant appeals.

Hon. F. R. Aikens, Judge. Action by Charles A. G-reeley against Charles T. McCoy on a contract of guaranty. A demurrer to the complaint was sustained on appeal, 3 S. D. 218, 52 N. W. Rep. 1050, and plaintiff applied to this court for leave to amend his complaint in the court below. No briefs filed.

<p>Appeal from circuit court, Kingsbury county. Hon. J. O. Andrews, Judge.</p> <p>Action by the McCormick Harvesting Machine Company against Henry F. Snedigar and Charles F. Whitney, administrator of John S. Tuttle, 'deceased, on promissory notes. There was judgment for plaintiff, and defendant Whitney appealed. The ' appeal being dismissed, (53 N. W. Rep. 83,) Whitney moved to amend it.</p> <p>No briefs filed.</p>

Action by Jacob L. Miller against Alvin S. Way and others. Jiidgment for plaintiff. Defendants appeal. Motion to strike bill of exceptions from the record. No briefs filed.

Hon. H. G-. Fuller, Judge. In an opinion found in 2 S. D. 577, 51 N. W. 590, the court affirmed the decision of the lower court. Subsequently, a rehearing was granted, and this opinion is upon the rehearing.

Hon. A. W. Campbell, Judge. Action by John S. La Rue against the St. Anthony & Dakota Elevator Company to recover the value of wheat mortgaged to plaintiff, and sold to defendant by the mortgagor. There was judgment for plaintiff, and defendant’s motion for a new trial being denied, it appeals. The facts are stated in the opinion. The plaintiff will be confined to compensation commensurate with the actual injury sustained. 3 Suth. Dam. 527; G-illilan v. Kendall, 42 N. W. 281.

Hon. D. Haney, Judge. Action by John Lawrence against H. W. Peck on a promissory note. Defendant pleaded a general denial and the statute of limitations. A motion to compel him to elect on which defense he would proceed was sustained, and defendant appeals. The facts are stated in the opinion. The acknowledgment or promise to take a debt out of the statute of limitations must be in writing. Biddell v. Brizzalora, 56 Cal. 374; Kincaid v. Archibald, 73 N. Y. 192.