Volume 3 — Utah Reports

<p>Appeal from the first district court. The complaint, among other things, alleged that the note sued upon was assigned in blank and delivered to plaintiff. There was no allegation that plaintiff had ever paid the note. The appeal is from a judgment by default. The other facts appear in the opinion.</p> <p>The complaint is insufficient to support the judgment: 2 Kent’s Com. 617; Sedgwick on Damages, 367, 368; Hwrnphy v. Crane, 5 Cal. 175; 9 Id. 557; McDermott y. Mitchell, 53 Id. 617; 23 Id. 64. The summons was fatally defective, and was never legally served: Civ. Pr. Act, sec. 26; 2 Cal. 24; 8 Id. 625; Lyman v. Milton, 44 Id. 633; Civ. Pr. Act, sec. 29; 8 Cal. 568; 11 Id. 378; 12 Id. 100; 35 Id. 299; 43 Id. 387; Kibbe v. Benson, 17 Wall. 624.</p> <p>Cited Ellsworth v. Lockwood, 42 N. Y. 97 ; 65 Id. 557; 17 Conn. 586; 46 Mo. 557; 23 Pa. St. 294; Civ. Pr. Act, secs. *4, 5.</p>

The appeal of defendant having been dismissed with costs, respondent taxed as costs an attorney’s docket-fee of ten dollars, which was the only item appearing in the cost bill as filed. The respondent moved to retax the costs.

The opinion states the facts. The exclusion of the judgment on the attachment suit, as evidence, was error. It was evidence of Clemetshaw’s indebtedness to Beers, and that Beers was a creditor, and therefore qualified to attack the sale to plaintiff.

<p>Mortgage, Form of.— A conveyance of lands to secure a debt due from the mortgagor, the amount of which debt is stated -prima facie only in the mortgage, leaving a further adjustment of .the debt to be made between the mortgagor and mortgagee, is nevertheless a mortgage, and may be enforced as such for whatever amount may be found due in an action to foreclose.</p> <p>Id. — A conveyance of lands as security for a debt may be enforcejl as a mortgage, even though the conveyance contains no clause directing or authorizing a foreclosure on default by the mortgagor, and though in the mortgage there be no obligation on the part of the mortgagee to recon-vey to the mortgagor on a satisfaction by him of the debt secured by the mortgage.</p> <p>A Mortgage bt a Public Officer to Secure an Indebtedness due to the territory through the defalcation of such officer, though unauthorized by law, is not in violation of public policy, and the giving of which does not impair the right of action upon the official bond of such officer.</p> <p>Mortgage — Action to Poreclose, Parties to. — G., a collector of taxes, having failed to pay into the proper treasury tax moneys by him collected, executed a mortgage to S. to secure the moneys which thus became due respectively to the territory and Salt Lake county. On an action to foreclose, held, 1. That the mortgage was such a one as G. could execute and S. receive for the beneficiaries named therein, and that in the absence of a statute to the contrary, the territory and county each could accept of the act of S., the trustee, and sue to convert into money the property thus voluntarily appropriated by G. to secure his debt. 2. That S., the trustee, and the territory and county were proper parties plaintiff in the action to foreclose.</p>

PETITION to the supreme court for a writ of habeas corpus, which was issued. The return showed that petitioner was in custody under a conviction for the violation of an ordinance of Salt Lake City.

Writ of certiorari to review a decree of divorce by the probate court of Salt Lake county, entered May 9, 1873. Quasbed on motion of Sarah K. Steplienson.

The plaintiff sued defendant for a balance of moneys loaned and advanced to defendant from January 15, 1877, to January 15, 1879. Held: or their proceeds, as security for the purchase price and interest. 4.

The opinion states the facts. Sutherland & McBride, for the appellant, 'cited, on the question of the liability of the city, Thompson on Neg., 731-733, 738, 740, 741, 745 ; 91 IT. S. 540; 1 Black, 39 ; 4 Ohio St. 80; 6 Gray, 547; 5 Id. 110; 3 N. Y. 464.

The defendants moved for a new trial upon affidavits on the ground of — 1. Newly discovered evidence in this, that the juror Joseph Morris was an alien; 2. That the juror Morris was at the time of the verdict an alien, which fact was unknown to defendants at the trial, but was first discovered after verdict.

Upon the call of the case for trial in the court below, the plaintiff demanded a jury; the defendants requested a trial by the court of the equitable defense pleaded, before a jury was called to try the issues at law. The court ruled for the defendants; the case was heard and determined by the court upon the equitable defense.

Appeals from the third district court. The complaint- in this case alleges: “.That on or about the eighteenth day of July, 1877, at the county of.

-The opinion states the facts. It was incompetent to attaek the title of. the Switzerland by showing that some claim not in controversy or owned by either party, had a better title. If such attack in- any case would be proper, it could not be made by proof of the declarations of a third person. The second and thirteenth assignments of error in law may be considered together.

The plaintiffs had judgment; the defendants appealed. The apellants applied for a government title to a mining claim called the I X L. The respondents filed an adverse claim to a portion of the premises under a mining location called the Azure Queen, and thereupon brought this action to determine the title and right of possession of the premises in conflict between them.

Appeal by the plaintiff from a judgment of the third district court in favor of the defendant Emma Hardin. Held: that the Spanish or Mexican law is in force in this territory, and by that law the defendant Emma Harden was entitled to this property.

The territorial criminal practice act of 1878, upon the subject of challenges to jurors, reads as-follows: “ Sec. 225. When several defendants are tried together, they can not sever their challenges, but must join therein.” “ Sec. 238. If the offense charged is punishable with death or imprisonment in the penitentiary for life, the defendant is entitled to ten and the territory to five peremptory challenges.

This cause was first argued at the June term, 1880, and the opinion filed September 25,1880 (see 2 Utah, 557); subsequently upon the allowance of a petition for a rehearing, the case was reargued, and the following opinion was delivered. Hon. Jacob S. Boreman, who delivered the first opinion, having in the mean time resigned, he was succeeded by Hon. Stephen P. Twiss. The opinion states the facts.

<p>Appeal from the third district court. Tbe jury returned a verdict in favor of the plaintiff for one thousand seven hundred and fifty dollars, and judgment was entered accordingly. The defendant moved for a new trial, which was denied, and this appeal is from that order.</p> <p>B. Ar. BasJcin and G. F. Blandin, for tbe appellant, argued that it was error to refuse the instruction requested by the defendant, and that defendant was taken by surprise in tbe instruction to the jury on a state of facts, evidence in support of which bad been excluded at the trial.</p> <p>If affidavits are used to establish surprise, “ they must be conclusive, and tbe facts in respect of which the evidence creating the surprise was given must be such as that the verdict may be mainly attributable to tbeir effect upon the decision of tbe cause.”</p> <p>The surprise must be shown by the most satisfactory evidence in reach of tbe defendant, and the facts constituting legal surprise must be shown by an affidavit of tbe attorney, and not of tbe client.</p> <p>To sustain each of which propositions we cite Schellhouse v. Ball, 29 Cal. 605, affirmed in Brooks v. Douglass, 32 Id. 212. No case should be reversed for error in an instruction, “where tbe error does not militate against appellant, or injure him, or where tbe jury were not misled by it, or where justice appears to have been done, or where no other conclusion could have been arrived at from the evidence: ” 3 Estee’s Pl. 612, secs. 87, 88.</p> <p>“The whole charge to the jury should be taken together, and if the case appears to have been fairly presented to the jury, the verdict will not be disturbed:” 8 Estee’s PL 612, sec. 89.</p> <p>Neither will a verdict be disturbed “on a- misdirection of the court, in a matter not material to the merits of the cause:” 8 Estee’s PI. 592, sec. 54</p>

<p>Appeal from the third district court. The opinion states tbe facts.</p>

This action was brought by the plaintiff, in the second district court, for the sole purpose of obtaining- an injunction restraining the defendants from mining in or removing ores from the Kinner mining claim, owned by the plaintiff.

Appeal by the defendant from an order of the third district court denying his motion for a new trial. The opinion states the facts. Arthur Brown, for the appellant, argued that the motion for a new trial was made as much upon the record as upon the statement filed, and that by the record it appeared that error had occurred in the progress of the trial. The proposed statement on motion for a new trial was not such as the appellant was permitted by the statute to file: Pr.

<p>Accident and Surprise as Grounds eor a New Trial. — A new trial will not be granted on the ground of accident and surprise to a party who by the exercise of ordinary diligence might have avoided the effects of what he complains of as the grounds of his surprise.</p> <p>Id. — The affidavits used on the hearing in this case examined and held not to have made such a case of accident and surprise as entitled the defendant to a new trial.</p>

The opinion states the facts. No brief on file. Respondent alleges that there is no appeal given to the person that is seeking to arrest him. The act of habeas corpus of the territory of Utah is a copy of the California statute, and no appeal has ever been allowed under that act: In re Parsons, 2 Cal. 430; People v. Selvester, 40 Id. 627. .

The opinion states the facts. The court erred in permitting Sarah Skews to be substituted as plaintiff in place of her husband, William Skews. The authority for substitution of parties is found in the second clause of section 16 of the practice act. The affidavit of William Skews, if true, shows that he was not the real party in interest at the time of the commencement of this action, and not entitled to bring the same: Prac. Act, sec. 4.

The opinion states the facts. If the right to the possession and right of way were not in the plaintiffs at the trial, they could not recover; and as there is no dispute as to this deed to Taylor, that ended their case, though defendant did not connect itself with it. It is a case of a plaintiff failing to make out his case. The plaintiff must show his right to recover — not the fact that the defendant had no right to remain.

The opinion states the facts.- A municipal corporation, although regarded as a legal, is not a physical, entity, and is incapable of acting, except within its corporate powers and by its authorized officers or agents. Therefore, the averment that a city has done a certain act involves the assertion of two things; 1. That it had the power under its charter to do it; and 2. That it has exercised that power. Unless the former be true, the latter is impossible.

<p>Appeal from the third district court. The opinion states tbe facts.</p>

This is an action by the appellant to recover damages for the destruction of his wearing apparel and personal effects, which were in a room occupied by him in and as a guest of the Decker House. Said house was situated within about eight feet from the respondent’s track, and was on its right of way, by license and permission of the company.

Appeal by the plaintiff from a judgment of the third district court, entered for the defendants on demurrer.

Rolfson advanced moneys to Sarah and Thomas F. Heath, administrators of the estate of Thomas Heath, deceased, to pay debts contracted by the administrators in the. construction by them of a house upon real estate of the deceased coming to their hands in the course of administration.

The complaint in this action contains the following allegations: That the plaintiff is a New York corporation; that it is the owner, subject only to the paramount title of the United States, and in possession of the Central and Lady of the Lake mining claims, particularly describing them by metes and bounds; “that the defendant claims some interest or estate in said premises, or some part thereof, adverse to said plaintiff, but said claim of defendant, as said plaintiff…

The opinion states the facts. Presly Penny and S. A. Kenner, for the appellants, argued that where ten dollars’ worth of work for each one hundred feet of the claim had been performed at the time of the passage of the act of May 10,1872, such work was the first amiual expenditure required by that act, and the claim was not subject to relocation until January 1, 1876.

<p>A COLLECTOR as Taxes Who Sues eob Delinqubnt Taxes is, so far as the money due from the delinquent tax-payer is concerned, a trustee for no one, and in bringing the suit he is acting in his own and not in another’s right.'</p> <p>In Such Cases the Coubt Below can not Legally Dispense with the filing of an undei'taking on appeal; and in this case, no undertaking having been filed, the appeal is ineffectual for any purpose. Appeal dismissed.</p>

The opinion states the facts. A justice of the peace has jurisdiction in suits for taxes, when the sum claimed is less than three hundred dollars; but if the answer of the tax-payer puts in issue the legality of the tax sued for, the justice must certify the case to a court having jurisdiction to hear and determine said issue. The district court, therefore, erred in holding it had not jurisdiction, and dismissing this case.

The opinion states ■ the facts. No statement was filed in this case. The appellant claims he is entitled to judgment on the pleadings. The complaint alleges that plaintiff was the owner of undivided feet in certain mining claims, which were used to form the capital stock of defendant corporation. To facilitate the transfer, plaintiff and others deeded to defendant Shields as trustee, and Shields deeded to the new corporation as formed.

The opinion states the facts. The plaintiff himself docketed the case in the district court, and thus submitted himself to its jurisdiction. His act was a waiver of all objections: McComb v. Johnson, 47 Mich. 592; Coppernoll v. Ketchum, 56 Barb. Ill; Seymour v. Judd, 2 N. Y. 464; Pierce v. Pehfuss, 35 Mich. 53; Falh-ner v. Beers, 2 Dough 117; Lane v. Leech, 44 Mich. 166; Palee v. Miller, 15 Hun, 366; Clapp v. Graves, 26 N. Y. 419; Barker v. Lns.

The defendant had judgment; plaintiff appealed. The opinion states the facts. The defendant is a foreign corporation. It can only be sued here, by reason of its having property in this jurisdiction. This suit, in fact, is a proceeding in rem, because the person or body of the corporation has no existence outside of the state which created it: 34 N. Y. 208; 13 Pet. 521; 2 Black, 295; 20 Wall. 149; 96 TJ. S. 713.

Appeal by the defendant from an order of the third district court sustaining plaintiffs’ motion for a new trial. The opinion states the facts.

The opinion states the facts. The defense made to the charges of collusion and fraud in the appellant’s petition consists of bare denials, while the facts constituting such fraud remain. This is not enough, and should the court be satisfied that there was in fact no corrupt intention in what was done, yet this can not affect the legal conclusion it is bound to draw from the facts shown to exist: Hawley v. Cramer, 4 Cow. 731,732.

The opinion states the facts. No printed brief on file. The substantial question in this case is, whether the instruments on account of their terms, form, and nature are embraced within the statute under the alleged authority of which the tax in question was assessed.

The opinion states the facts. Power to prohibit the liquor traffic, being within the category of '‘rightful subjects of legislation,” was conferred upon the territorial legislature by the organic act. The legislature has clearly conferred the power to prohibit the sale of liquors upon Logan City: Comp. L. 716, 717.

The statute of limitations provides that actions “ can only be commenced as follows:” “Sec. 16. Within three years; * * * third, an action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property.” The opinion states the facts. The question is, Can a man be deprived of his property against his consent, and without any fault or negligence on his part ?

Appeal by the plaintiffs from a judgment entered in the third district court for the defendants on demurrer. The opinion states the case. Under the admitted facts, Rasmussen has the right to be placed in the same position as if the fraud had not been consummated. Equity regards that as done which ought to have been done: 1 Pomeroy’s Eq. Jur., sees. 364, 367, 369,370, 373, 376.

A demurrer to the amended complaint having been sustained, plaintiffs elected to stand upon the same, whereupon final judgment was entered for the defendant. The opinion states the facts. No briefs on file.

<p>Appeal from the third district court. The defendant was indicted in the court below for burglary. When arraigned, he pleaded “not guilty,” and his bail was fixed at one thousand dollars, which sum he deposited with the cleric in lieu of bail, in accordance with the provisions of section 403 of the criminal practice act, and thereupon he was discharged from actual custody. At a subsequent term of the court the case was set for trial on a day certain, and when the case was reached for trial on that day the defendant did not appear iii person, but. was represented by the attorney who had appeared with and for him' at the time of the arraignment. When the case was called for trial, the defendant not appearing, the prosecution moved for a forfeiture of the money deposited in lieu of bail. The attorney who had before appeared for the defendant at this time objected to the defendant’s being called, or any proceedings being taken to declare the deposit forfeited, “on the ground that the indictment in said cause did not set forth any public offense against the laws of the territory of Utah,” and requested the privilege of being heard on the sufficiency of said indictment. The assistant district attorney objected to the appearance of said attorney and to his right to be heard as requested, on the ground that the defendant had no right to appear by attorney or counsel, and that his attorney had no right to be heard in the case. The court so decided, and thereupon the defendant was called, and not appearing, an order of forfeiture was entered; to all of which the attorney for the defendant excepted. Afterwards, but during the same term, and without any personal appearance on the part of the defendant, and without his surrendering himself in any way to the custody of any officer, his counsel moved the court to discharge the order of forfeiture, upon the same grounds substantially on which he had sought to resist the entry of the order. The hearing upon this latter motion was postponed from time to time, and finally came on to be heard during the April term of the court, at which time the district attorney objected to the hearing of the- motion, on the ground that the defendant was at large, and could not be' heard in an application to discharge the forfeiture unless personally present; and in support of his objection presented a certificate of the United States marshal, showing that the defendant was still at large, a fugitive from justice. The court received the certificate and refused to entertain said motion, to which counsel for defendant excepted. Afterwards the court ordered the clerk to pay over said deposit money to the - territorial treasurer, as directed by section 411 of' the criminal practice act.</p> <p>No brief on file.</p> <p>The orders complained of are not appealable, no appeal having been given by statute. But if they are, the defendant can not be heard. A defendant charged with a felony may appear with counsel, not by counsel. He had no right to move by counsel to set aside the forfeiture; he can not prose-•eute this appeal by counsel: People v.Redinger, 55 Cal. 290; State v. Genet, 59 N. Y. 81; Smith v. United States, 94 IT. S. 97; Commonwealth v. Andrews, 97 Mass. 543.</p>

Appeals from the third district court. The people appealed from the judgment sustaining a demurrer to the indictment; the defendant appealed from an order resubmitting the cause to the grand jury which should be next impaneled after the judgment on the demurrer, and from an order holding the defendant in custody to abide the action of such grand jury.

The opinion states the facts. This action was brought to procure the cancellation of a certain deed purporting to be a conveyance by plaintiff to defendant of certain lands. There is one case attempted to be stated in the bill as the ground upon which the relief is sought; quite a different case is attempted to be made by the evidence at the trial; while the case made by the findings is neither based upon that stated in the bill nor supported by the testimony.

The opinion states the facts. No brief on file. The variance between the allegations and the proofs in this cause was necessarily fatal: 1 Greenl. Ev., secs. 63, 66, and note; Addington v. Magan, 2 Eng. L. & Eq. 827. The items of the account, as well as any and all claims, for “ goods, wares, and merchandise,” became merged in the account stated : 2 Greenl. Ev., see. 127; 13 Cal. 427; 4 Wis. 220; 33 Cal. 694; 1 Utah, 317..

<p>Appeal from the first district court. The opinion states the facts.</p>

<p>Appeal from the third district court. The opinion states tbe facts.</p>

The opinion states the facts. A payment of a part of the sum which is conceded to be due in money can not be an accord and satisfaction for the whole sum: 27 Cal. 611; 12 Gray, 343; 10 Cush. 48; 12 Met. 551; 20 Conn. 559 ; 38 Pa. St. 149 ; 2 Parsons on Contracts, 685; 2 Green! Ev., sec. 28 et seq. An account stated is not a more solemn instrument than a promissory note; it need not be any instrument at all; it is the meeting of the minds of two parties on the balance due.

<p>Appeal from the third district court. The opinion states the facts. '</p>

The defendant was convicted in the third district court of the crime of murder in the first degree, and sentence of death pronounced. He appealed to the supreme court of the territory where the judgment of the district court was affirmed (ante, p. 396).

<p>Appeal from the first district court. The opinion states the facts.</p>

The opinion states the facts. The court erred in overruling defendant’s demurrer to plaintiffs complaint, and consequently tbe judgment should be reversed. The complaint is radically defective and will not support a judgment. As a precedent, it is a model, and proclaims its own insufficiency with graphic perspicuity.

The complaint in this case contains four counts or causes of action: tbe first is for four thousand dollars; the second for eight thousand dollars; the third for four thousand two hundred and fifty dollars; and the fourth for fifty thousand and eighty-three dollars and seventy cents; and judgment was demanded for the aggregate sum of sixty-six thousand three hundred and thirty-three dollars and seventy cents.

The opinion states the facts. The complaint does not state facts sufficient to constitute a cause of action against this defendant. It does not state that the plaintiff before the commencement of this action laid before the county court of the county his claim or demand, with the evidence to sustain it, and that the county court rejected said claim. The counties in Utah, like counties in the states, are municipal corporations.

The transcript on appeal contained several affidavits, which the defendant’s counsel in their brief claimed disclosed new evidence material on a retrial; but the affidavits were not embodied in any bill of exceptions, or otherwise identified as having been used on the motion for a new trial, and no bill of exceptions was taken.

<p>Appeal from the third district court. The opinion states the facts.</p> <p>This was an action in rem, and the court certainly had jurisdiction of the property of the defendant. This is in accordance with the opinion of the court in the case of Pennoyer v. Neff, 95 U. S. 714. See also Empire City Bank, 18 N. Y. 199; Happy v. Mosher, 48 Id. 213; Westenseek v. Qrigg, 12 Id. 102; Campbell v. Evans, 45 Id. 356.</p> <p>Section 1772 of the laws of Utah of 1876 governs in this case, and is directly opposed to the judgment of dismissal entered in the third district court on appeal; and under this section, if for no other reason, the judgment of said court should be reversed.</p> <p>The action was rightfully dismissed, because it was one over which the justice had not, and could not acquire, jurisdiction. No person shall be held to answer a summons issued against him from a justice’s court in a civil action, in any precinct other than the one in which he shall reside, unless the case falls within some one of the subdivisions of section 1734 of the compiled laws.</p> <p>It is contended that the case before the court does fall within the sixth subdivision of this section, because the due-bills in the one case and the account in the other are dated at Bingham. So far as the due bills are concerned, the place at which they are dated may be taken as the place where the contracts were made. But the fact that they are dated at a particular place affords no presumption that the contracts were to be pef ormed at that place. (If it did it would not aid appellant at all, because the jurisdiction of a justice must affirmatively appear — no presumptions are indulged in favor of such jurisdiction.) The statute, however, makes the jurisdiction of the justice depend upon the fact that the contract is to be performed within his .precinct, and not at all upon the fact that it was made within such precinct. A contract to pay money, generally, is not a contract to pay at the place where the promise is made, but it is to pay at whatever place the creditor may be found within the sovereignty: 2 Chit. Conk, 11th Am. ed., 1069; Holden v. Johnson, 8 Exch. 689; Fissard v. Maguier, 18 C. B., N. S., 286; Poole v. Tumbridge, 2 Mee. & W. 223; Bixby v. Whitney, 5 Greenl. 192; Hale v. Patton, 19 Am. Rep. 168.</p>

<p>Judgment Aeeirmed on the Authority oe Kdopenstein v. Woole, decided at this term, ante, p. 426.</p>

<p>The Jurisdiction to Hear, Try, and Determine Causes in Divorce is not the exercise of chancery or common-law jurisdiction.</p> <p>The Probate Courts and not the District Courts have original jurisdiction in divorce cases.</p>

<p>A Writ oe Error is a Writ oe Eight, Allowable at Common Law, and will issue by the supreme to the district courts, in the absence of statutory provisions regulating the procedure for prosecuting the writ.</p> <p>A Writ oe Error will Issue without a Petition thereeor, and No Bond for the prosecution of the writ is necessary as a condition to its issuance.</p>

<p>Appeal from the second district, Carson county. The opinion states the facts.</p>

<p>When an Indictment is Duly Exhibited in Open Court and Indorsed “A True Bill,” it is evidence that it was duly found by a legal grand jmy.</p> <p>A G-rand Jury Impanneled erom Jurors Obtained on a Venire Issued Less than Thirty Days prior to the commencement of the term of court at which the jury is to serve, is not a legal grand jury.</p>

<p>Appeal from the second district, Carson county. The opinion states the facts.</p>

<p>A Summons Which Tails to State the Time and Place at Which a Defendant is required to appear and answer the complaint filed against him is defective, and will be quashed upon motion interposed before appearance and plea.</p> <p>The Legislative Power Conferred upon the Terbitobial Legislature by the organic act can not be delegated.</p> <p>Sections 9 and 16 oe the Organic Act Impose the Duty upon the Territorial Legislature of fixing by law the times and places at which judges of the supreme court should hold sessions of the district courts; and the act of January 19, 1855, providing that upon petition of not less than one hundred voters and tax-payers in any judicial district the judge of such district shall hold a special session of the court at the time and place specified in the petition, attempts to delegate the legislative power conferred upon the territorial legislature, and is void.</p> <p>The Act oe January 19, 1855, is in Oonelict with the Act oe the Territorial Legislature oe January 21, 1859, 'providing for the district courts to convene at the county seat of any-county to try cases arising therein, upon petition of three fourths of the electors in such county, and was by implication repealed thereby.</p> <p>The Act oe Congress Authorizing the Judges oe the Supreme Court to fix a time and place in each of the districts- for holdiug the district courts, conferred authority only for holding federal courts of the district, and not for holding territorial courts to try causes arising under territorial laws, and the act of the territorial legislature of January 21, 1859, is not in conflict therewith.</p>

WRIT of error to the second district, Carson county. The action was begun by defendant in error upon promissory notes, executed by plaintiffs in error, and transferred to him after maturity by the payees.

<p>Original bill in the supreme court for an injunction. The opinion states the facts.</p>

<p>Where No Bill oe Exceptions has been Filed, the judgment of the court below will be affirmed, unless the record affirmatively discloses error.</p>

<p>Appeal from the third district. The opinion states the facts.</p>

<p>Appeal from the third district court. White, plaintiff below, had judgment. • The opinion states the facts.</p>

<p>A Pleading Interposed aeter Demurrer Overruled is a waiver of the demurrer.</p> <p>Where the Only Errors Assigned upon Appeal are Such as Either have been Waived in the court below, or such as can not be considered here by reason of the laches of the appellant, the appeal will be dismissed upon proper motion.</p>

<p>Appeal from the third district court. The opinion states the facts.</p>

<p>In an Action by the Plaintiff, an Employee of Defendant, for . Damages for Injuries Received by Reason of the Negligence of Defendant, an allegation in the complaint that plaintiff’s injuries were sustained by the negligence of the defendant in supplying a defective break, the defect in which occasioned the injury, is an allegation of personal negligence of the defendant, and not an allegation of negligence of a servant or agent of defendant, from the mere fact that a corporation can act only by its servants and agents.</p>

<p>Appear from the third district court. The opinion states the facts.</p>

<p>Appeal from the third district court. The opinion states the case.</p>

<p>When a Jury is Waived and a Cause is Tried by the Judge, the Record must Disclose a Finding by him of the facts; with a statement of his conclusions of law. If no such findings are made, there is nothing to support the judgment.</p>