Volume 30 — South Dakota Reports

Hon R. B. TRIPP, Judge. Action by Alan Bogue, Jr., against T. I. Gunderson, for damages for assault and ¡battery. From a judgment for plaintiff for $750, defendant appeals.

ITon. Alva E. Taylor, Judge. Action by Elvira B. G. Ballou .against W. B. Carter and others, to quiet title to. land; defendant counterclaiming for specific performance under a contract of sale. From a judgment for plaintiff, and from an order denying- a new trial, defendant appeals.

Hon. C. X. Seward, Judge. Uno Stone was convicted of engaging in the business of selling intoxicating liquor without a license, and -he appeals.

Hon. Frank McNulty, Judge. Proceeding in the nature of a writ of prohibition by the State, on the relation of C. L. Seim, against T. R. Cronin and others, to restrain and prohibit submission to a vote of question of sale of intoxicating liquor at retail. From a judgment denying a preemp-tory writ of prohibition, and from an order denying a new trial, plaintiff appeals.

<p>Action. — Quieting Title — Amended Answer' for Foreclosure of Mortgage — Counterclaim—Delay..</p> <p>In an action to .quiet title to realty, held, fallowing the decision .of this court in Murphy v. Plankinton Bai\k, .20 S. D. 178, 105. N. .W. 245, that, .while the defendant bank’s right to foreclose its alleged mortgage on the land exists, yet its right to foreclose it in this action, asserted at so late a date, will be denied, .and the former order of this court, allowing an amended answer by way of such .foreclosure, is modified, and the order appealed from is, to that extent, reversed.</p>

Hon. Joseph W. JoNEs,; Judge. Action by Mary Garrigan, as widow of Michael Garrigan, deceased, against John Thompson and others. From a judgment for-plaintiff, and from an order denying a new trial, defendants appeal. For points of. respective counsel, see Garrigan v. Kénnedy et al., 19 S. D. 11, in which case substantially the same briefs were filed.

Hon. Lyman T. BouchSR, Judge. Action by Lewis F. Whiteher against B. A. Foote, as adminis-¿tyator, and others. From a judgment for defendants, plaintiff appeals. No -brief was- filed by either party upon this -appeal.

Hon.. R. B. Tripp, Judge. Action by Anna E. Bjornson against P:aul Rostad, in claim and delivery for possession of wheat claimed by plaintiff as owner. From a judgment for plaintiff on a directed verdict, defendant appeals.

Application, for writ of mandamus -by Robert P. Stewan against Samuel C. Policy, Secretary of State, requiring defendant, as Secretary of Stat-e, to receive and file certificate of nomination of plaintiff as -party candidate, etc. A general demurrer to the complaint was filed. N-o brief w-a-s filed by either party.

Application by the State, at the relation, of John Gray, against Oscar C. Olsen anid others as Republican .nominees for presidential electors, and S. C. Polley, as Secretary of State, for an injunction restraining the Secretary .of State from certifying to the county auditors the nominations for presidential electors selected by the Republican state convention. We submit that the complaint presents no case upon which the jurisdiction of a court of equity can be founded.

Hon. R. B. Turn?, Judge. Drainage proceedings by John O. Aaseth and others, to which James S-. Held: that the refusal of a city council to grant the petition for the exclusion of lands from the corporate limits of the city is appeal-able, iamd that this. court is committed to a line of reasoning that would hold the creation; of a drainage district to be a quasi judicial act.

<p>On motion for rehearing.</p>

. Hon. JohN F. Hughes, Judge. Action by Michael T. Collins against Hyman County and others,, to quiet title to land sold for taxes by treasurer of Hyman County, and to cancel a tax sale certificate under such sale, said land having been taxed1 in both Stanley and Hyman counties. Judgment' for plaintiff, and defendants appeal.

Hon. FRANK McNulty, Judge. Action by First National Bank against the Aberdeen Artesian Well Compairy, for breach of contract for construction of an artesian well. From a judgment entered upon a directed verdict, plaintiff appeals. All parties testify that the well was constructed under the oral agreement.

<p>1. Taxation — Recovery Back — Verbal Protest — Invalid Tax.</p> <p>Where taxes, paid with knowledge of all facts concerning levy, are sought to he recovered back, a mere verbal .protest against the validity of the taxes, without stating any reason, is insufficient to preserve taxpayer’s right to enforce repayment.</p> <p>2. Taxation — Invalid Taxes — Protest—Conditions to Repayment— Voluntary Payment.</p> <p>To preserve his right to recovery hack of invalid taxes paid by one who knows the facts rendering the tax invalid he must not only protest, stating the reasons therefor, but must wait until active steps to enforce payment are taken, before he pays the tax. Payment under any different circumstances, except under duress and under proper protest, is voluntary.</p> <p>3. Taxation — Invalid Taxes — Recovery Back — Ignorance of Facts— Public Policy.</p> <p>Where taxes are not such as could not have been legally levied, the mere fact that township taxpayers did not know, when they voluntarily paid taxes, that more taxes were levied ■than were authorized by the electors does not entitle them to repayment. The public records show invalidity of attempted levies, and public policy requires that taxpayer be -presumed to know facts appearing of record.</p> <p>Corson and Haney, J. J., dissenting.</p>

Hon. Frank McNui.ty, Judge. Proceeding in the nature of a writ of prohibition by the State, on the relation of C. L. Seim, against T. R. Cronin and others. From a judgment denying the writ, plaintiff appeals. On order to show cause why the appeal should not be dismissed.

Hon. Robert B. Tripp, Judge. Action by O. Tuntland- against N. Noble, as Mayor of the City of Centerville,- and others, to contest a city election involving the issuance of a license for sale of intoxicating liquors- at retail. From a judgment sustaining a general demurrer to the complaint, plaintiff appeals. The proposition to -sell intoxicating liquors -at retail was submitted to the electors of the said city of Centerville at the 1912 annual municipal election.

Appeal front Circuit Court, Day County. Hon. Frank Mc-Nurty, Judge. Action by M. W. S'heafe against August Zastr-o-w, to recover ■balance of purchase price of a heating plant. Held: that an answer is insufficient as a counterclaim for damages for breach of warranty where it fails to allege what the value of the property would have been if as warranted.

Hon. Joseph W. JONES, Judge. Defendant, J. R. Millard, was convicted of embezzlement; ■ and from such judgment and from an order denying a new trial, he appeals. The Court erred in overruling the objection of the defendant to- the following question upon the grounds therein stated: Q. State what quantity of hogs you had upon -the premises, described here, on or about the first day of December, ign?

<p>1. Quieting Title — Pleading—Denial of Notice of Deed.</p> <p>In an action to quiet title, plaintiffs evidence showed title in plaintiff;and the allegations oi; complaint that defendant, who set up title in himself under deed from the 'common grantor, took his deed and gave grantor a pretended mortgage for purchase money with notice and- knowledge of plaintiff’s prior deed, were not denied hy the answer; defendant’s deed having •been first recorded. Held, the trial court erred in sustaining a motion on said evidence and pleadings, for judgment in favor of defendant; that the denial in the answer that defendant’s deed and mortgage were without consideration, and the denial “that plaintiff now is or ever did have any title, interest, or claim of any kind whatsoever” in the land, and “no claim upon, demand, title -or interest therein at this date,” did not constitute a denial of plaintiff’s said allegations of notice, etc.</p> <p>2. Trial — Finding Contrary to Pleading — Evidence on Appeal.</p> <p>A finding in an action to q.uiet title that defendant took a ■conveyance of realty without notice of a previous deed hy same grantor, is erroneous, where defendant’s answer admitted, hy failure to deny, plaintiff’s allegation that defendant took such 'conveyance with notice; and the point that such finding must, in absence of a bill of exceptions containing evidence, be taken as true, is not tenable.</p> <p>3. Record on Appeal — Assignment of Errors — Original Record Examined.</p> <p>Respondent contended that no proper statement of facts and no assignment of errors appears in appellant’s brief; but, held, following Atlas Lumber Co. v. Quirk, 28 S. D. 643, 135 N. W. 172, that as such brief was filed prior to publication of decision in case of State v. Doran, 28 S. D. 486, 134 N. W. 53, this court will in view of the chaotic state of our statute law as to what such statement should contain, resort to original record, which contains a complete record on those heads.</p>

Hon. Frank Mc-Nulty, Judge. Application by C. C. Jenkins for a writ of mandamus against S. G. Hallstrom and others, composing the Board of County Commissioners of Day County, to compel approval of certain vouchers for claims against the game fund.- From an order sustaining a general demurrer to his petition, plaintiff appeals.

Hon. Levi McGEE, Judge. Action by William M. Smith against Erland B. Johnson, for specific performance of a contract of sale of land and for damages. From a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. The defendant answers, setting up that the description of •the property is so indefinite, uncertain and defective that plaintiff’s action for specific performance cannot be maintained.

Hon. Wm. G. Rice, Judge. Roy Shepard, the defendant, was convicted of assault with intent to kill, and he appeals. In using the following words: “There is no self defense in it; therefore he was not defending himself because' he was not being assaulted,” this invaded the province of the jury. It was not for the Court to say whether the act of the defendant was in self defense.

Hon. Joseph W. Jones, Judge. Action by Minnehaha County against J. W. Boyce, administrator of the estate of Anna C. Phillips, deceased, to recover for the amount paid out by plaintiff for treatment and maintenance of deceased as a patient in the State Hospital for the Insane. From a judgment in part for plaintiff, and from air order denying a new trial, it appeals. It will be seen from' an examination of Secs. 544, 532, 336, 538 and Subd. 2 of Sec. 2137, Pol.

Hon. R. B. Trip!', Judge. Joseph Nimrod, the defendant, was charged with bigamy committed on the Yankton Indian Reservation. Held: “Act. Cong. Feb. 2, 1903, c. 351, 32 Stat. 793 (U. S. Comp.

Hon. R. B. TRIPP, Judge. Action by Roscoe B. Hughes against Charles W. Hill, Mayor of the City of Springfield, and others, to contest a local option election involving sale of intoxicating liquors at… Held: is contrary to the spirit and intent of”our liquor laws. An elector does not, by remaining passive, waive any defects or irregularities in the election.

<p>1. Costs — Malicious Prosecution — Inability of Complainant.</p> <p>Under Justices Code, Sec. 1X7, concerning giving of an undertaking for costs in a criminal prosecution, and Code Crim. Proc., Sec. 145, concerning the taxation of costs against complaining witness if prosecution was malicious, etc., held, that no recovery" of costs and expenses of a prosecution for rape in which the accused was secured hy requisition from another state could be had against the complainant, though hy his consent the affair was settled hy marriage of his daughter to accused; there -being no showing that the charge was malicious or without probable cause. •</p> <p>2. Contract, to Pay Costs of Criminal Prosecution — Consideration— • Performance of Official Duty.</p> <p>Complaining witness co-uld not be charged on a contract given ■by him to pay such costs if accused was brought back for trial and marriage between him and complainant’s daughter took ■place; it being the duty of state’s attorney to have procured the requisition and the return of accused without requiring such undertaking; such contract was without consideration.</p>

Hon. Alva E. Tayloh, Judge. Action by Frank Harris against B. F. Lyons and D. W. Lyons, co-partners as Lyons Brothers, in claim and delivery for horses, alleged as having been exchanged as part consideration under a contract of purchase by plaintiff of farm machinery under contract between plaintiff and Nichols & Shepard Company, of which contract defendants were assignees; and under a supplemental contract between plaintiff and defendants.

Hon. FraNK. B. Smith, Judge. Action by W. A. Hjeimberger against Ole Rudd, to recover a commission on sale of realty. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. This action was commenced before any title papers were to pass between Seigfreid and Rudd. The contract, “Exhibit I,” (folio 18) is an option only. Seigfried paid $500 down to bind the bargain, and the terms contained in this option contract have never .been carried out.

Hon. Wjujam G. Rice, Judge. The defendant, George Rice, was convicted of assault; and from a judgment on the verdict and from an order denying a new trial, he appeals. The fourth subdivision of Sec. 430, Code Crim.

Mandamus -by the State, on the relation of Frank C. Kron-schnabel, against Alva E. Taylor, as Judge of the Circuit Court in and for the Ninth Judicial Circuit, requiring defendant to proceed and try the issues of fact raised in a special proceeding.

<p>1. Corporations — Service of Process Against — Notice to Officer Outside of State — “Due Process of Law.”</p> <p>Under Code Civ. Proc., Sec. 110, providing for service of summons upon domestic corporations, held, that personal service had on a treasurer of. such corporation in, and who resides in another State, gives sufficient notice of the pendency of the action, which is the fundamental principle involved in “due process of law;” that the purpose of the statute is to bring the corporation, not the non-resident officer, within the jurisdiction; and such service is sufficient to confer jurisdiction over the corporation.</p> <p>2. Corporations — -Service on Domestic Corporations — Legislative Construction of Statute, Effect on Courts.</p> <p>Though Laws 1911, ch. 2Ü6, amends Sec. 110, Code Civ. Proc., by providing for service on domestic corporations by delivering copy to a designated officer of the corporation, “either within or without the state,” and such amendment may be regarded as a legislative adaption of the principle adopted by this court as to what constitutes due process of law, such legislative declaration is not binding on the courts, which may determine that Sec. 110, before such amendment, authorized such service.</p>

<p>1. Carriers — Loss oí Baggage — Transportation Within State — Demand of Damages.</p> <p>Pol. Code, Sec. 442, concerning demand of damages on common carriers before bringing suit, does not apply to actions for loss of baggage of 'passengers while being transported between inter-state points, in view of Sec. 431, limiting application of that chapter to transportation of property solely within the state, and to shipments from points within toi other ¡points within the state, involving shipments partly within an adjoining state or states.</p> <p>2. Carriers — Connecting Carriers — Liability of Deceiving Carrier— Federal Law.</p> <p>Under Act Congress June 29, 19 06, known as Carmack Amendment to Act Cong. Feb. 4, 1887, ch. 104, 24 Stat. 379, a carrier receiving baggage for transportation to ia, point in another state beyond its own lines, makes the connecting line its agent, and' is liable for its loss occurring on the connecting line.</p> <p>3. Appeal — Error—Reservation of Grounds of Review — What is Baggage.</p> <p>In ,an action against carrier for loss of baggage, defendant moved to strike out evidence on ground that certain articles did not constitute baggage, but did not object -to instructions assuming that the property was baggage, request ' submission of question whether it was baggage, or ask instructions on that head. Held, the only question open to review on appeal was whether such articles could, under any circumstances, constitute ¡baggage.</p> <p>Corson and Haney, J. J., dissenting.</p> <p>4. Evidence — Judicial Notice — Intex’state Commerce Rules and Regulations — “Baggage.”</p> <p>Courts take judicial notice of the extensive 'powers given .by federal statutes to Interstate Commerce Commission, hut will not take judicial notice of the definition by that commission of the term “baggage,” nor that it has prescribed what shall be included in that term.</p> <p>5. Carriers — “Baggage,” What Constitutes — Question for Jury— Guns — Fishing Tackle — Household Goods.</p> <p>Baggage, as regards a carrier’s liability, includes whatever ¡passenger takes with him for his personal use and convenience, according to the habits or wants of the particular class to which he belongs, either relative to¡ the immediate necessities or the ultimate purposes of the journey, and are. determined from character and length of journey, its purposes and objects, owner’s station in life, ¡and the prevailing custom of the class of travelers to which he belongs; and held, the guns of a hunter or fishing tackle of a fisherman is baggage of owner while on hunting or fishing expedition; the camping outfit of a camper, including dishes and cuttlery; the tools of a mechanic when going to perform work of his trade; bedding, dishes or cutlery, of one contemplating ashort sojourn at a point where he will temporarily keep house, provided it is customery to take such articles in a trunk on such journeys and the articles are reasonably needed therefor; and such household articles aforesaid, are baggage when taken in trunks when owner is making a permanent change of abode, if it is customery to take with him in a trunk such articles; that in all cases such articles must conform in amount of value to condition in life of party taking same. Held, further, that it cannot be held that baggage is only such articles as are needed during the journey itself. That in determining what kind of goods carriers must carry and be responsible for, the custom of the carrier, and of his patrons, is looked to, and if his custom is to receive and carry certain property for hire, his calling as carrier of such property becomes established, even though such goods have not ¡been considered by courts as “baggage.” Held, further, that the question whether certain articles constitute “baggage” is a question for the jury.</p> <p>Corson and Haney, J. J., dissenting.</p>

- Hon. Joseph W. JONps, Judge. Action by the John W. Tuthill Humber Company, a corporation, against Willard McMackin for a money judgment, and against ■the County of McCook to enforce a mechanic’s lien upon a fund alleged to be due from the county to' defendant McMackin as contractor. From a judgment against defendant county, rendered upon overruling its demurrer to the complaint, the county appeals.

Hon. R. B. Tripp, Judge. . Defendant, Carl Hol-ter, was convicted of seduction; and from such judgment and from an order denying a new trial, he appeals. Evidence tending to prove acts of sexual intercourse, under promise of marriage, between defendant and the prosecuting witness, subsequent to the act charged in the. information -and testified to by the prosecuting witness, is inadmissible and should have been excluded.

Hon. Robert 1>. .Tripp, Judge. • . Action by Michael -McManus against Mark Malloy, for forcible entry and detainer. From -an order of the Circuit Court remanding the cause for trial by Justice Court, defendant appeals. The only question for this court to determine is whether from the answer of the defendant, verified by his oath, it appears that the determination of the action will necessarily involve the title to real estate.

Appeal _f rom Circuit Court, Beadle County. Hon. Alva E. TayloR, Judge. Action by the Buffalo Pitts -Company against William Deeg, in claim and delivery for recovery of a traction engine. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.

Action in claim and delivery by Thomas W. Fotheringham against Frank M. Lockhart. From a judgment on a -special verdict and findings by the trial court, plaintiff appeals. Appellant respectfully contends that the proposed showing was insufficient to entitle defendant to the relief asked, viz., permission to amend his answer by setting up facts, or purported facts, upon which to ask for a reformation of -the written instrument, for the reasons hereinbefore stated.

Hon. Fkank B. Smith, Judge. Action by C. G. Dautlel against J. H. Wolf. After defendant’s counsel liad been ejected from the courtroom by order of trial court, the trial thereafter proceeded in the absence of any attorney appearing for defendant; and a verdict was directed for plaintiff. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals.

Hon. William G. Rice, Judge. Action by David M. Dorsett against the Black Hills Traction Company, for specific performance of .a contract to furnish water to plaintiff from a canal constructed on land conveyed to it by plaintiff. From a judgment in favor of plaintiff, defendant appeals. The first proposition to be discussed is the uncertainty of this contract in respect to its duration. Xo duration of time is fixed by the contracting parties.

Hon. R. B. Tripp, Judge. Action by A. J. Rindles against J. W. Bordewyk, for proceeds of purchase money for personal property sold for plaintiff by… Held: in demurrer, that -the reply was good. A debtor may rightfully claim a promissory note as exempt from execution, although the maker holds notes or judgments against him.” To the same effect see, Coffing v. Dtingan, 6 Ind. App. 386, 33 N. E. 815; Id. 6 Ind. App. 388, 33 N. E. 816; Puett v. Beard, 86 Ind. 172' 44 Am.

Hon. William G. Rice, Judge. Action by the City of Deadwood against Christopher S. Hunsh, for abatement of an alleged public nuisance. From a judgment for plaintiff, entered upon a directed verdict, defendant appeals. The actual manual possession of this area in controversy and its substantial improvement for years before and after the execution of such deeds, negatives intention on the part of such grantors to surrender their rights.

Hon. Feank McNulty, Judge. M&ndamus by the State of South Dakota on the relation of John G. Hinrichs and others against .C. A. Olson, as Treasurer of the Independent School District of the Town of Claremont, of the -Counties of Brown and Marshall. From a judgment for relators upon their motion for judgment on writ and answer, for a 'peremptory writ, defendant appeals.

Hon. Frank McNulty, Judge.*” Mandamus by the State of South Dakota on the relation of John G. Hinrichs and others against C. A. Olson, as treasurer of the Independent School District of the Town of Claremont, of the Counties of Brown and Marshall. Peremptory writ issued, and defendant appeals.

Hon. Robert B. Tripp, Judge. The defendant, C. B. Carlisle, was convicted of practicing dentistry without a license, and he appeals. Held: “A statement bf a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The' jury do not find the person guilty of a previous- offense. .

Hon. Alva E. Taylor, Judge. Action by the Clow-Schaaf Lumber Company, a corporation, against N. J. Kass and another, to recover an. alleged balance due to plaintiff from defendants for building materials sold to them. From a judgment in favor of plaintiff and from an order denying a new trial, defendants appeal.

<p>1. Pleading — -Bill of Particulars — Libel and Slander-— Common Paw.</p> <p>Under Sec. Í35, Code Civ. Proc., as'well as at common law, ■the court has the same power to require defendant to file a bill of particulars in an action for a libelous publication as it has in actions on account.</p> <p>2. Bill of Particulars — Showing For — Timely Objection to Showing</p> <p>An objection that plaintiff’s showing was insufficient to justify .granting his motion for bill of particulars from defendant, will not be considered on review when not made -below.</p> <p>3. Pleading — Libel and Slander — Bight to Bill of Particulars — Contents of Bill of Particulars.</p> <p>Where, in an action for a libelous publication that charged .plaintiff with agreeing with agents of a party on trial to influence the jury, of which plaintiff was foreman, to acquit such party, and with bringing about an acquittal pursuant to such agreement, defendant pleaded the truth of such publication and that the story and the transaction had often been told him, plaintiff was entitled to a bill of particulars giving the names of such agents, but was not entitled to be informed of the names of the persons who had told defendant the story.</p>

C: Mead, Superintendent of the State Hospital for the Insane. No evidence is presented that she has shown any indication of insanity in the last four months, since the hearing before Judge Tripp. Dr. Mead has found no evidence of insanity in her demeanor since she entered the institution. If this does not indicate sanity at present how will we ever establish it? Constitutionality of law.

Original mandamus proceeding by the State, on the relation of Alfred N. Cook, against Samuel C. Polley, Secretary of State. The following authorities were submitted on behalf of plaintiff: Carter v. Thorson, 5 S. D., 478; Van Dusen, et al., v. State, 11 S. D., 321-322; Co.-Op. S. & L,.

Hon. C. X. Seward, Judge. Action by S. B. Hess and another against the South Dakota Central Railway Company, for value of a threshing machine belt. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. The question of the ownership of the belt rests entirely on the plaintiffs’ evidence.

Hon. Wiu.iam G. Rice, Judge. The defendants Donald A. McPherson, Frank M. Stewart, and others were indicted for a violation of Sees. 29 and .30, Chap. 222, Daws 1909, concerning banks and banking. From an order sustaining the separate demurrer of defendant Frank M. Stewart and discharging him, the State appeals. Chapter 222 of the Session Daws of 1909 embraces but one subject, which is clearly expressed in the title.

Hon. R. B. Teipp, Judge. Certiorari by the State, on the relation of Robert Coatsworth, against T. B. Olson and others, to review action of county commissioners and county superintendent in dividing a school district and creating a new,one on different lines than those prayed for in the petition.

Hon. W. G. Rick, Judge. The defendant, Frank M. Stewart, was indicted for assenting, etc., as a director of the Meade County Bank of Sturgis, to the reception of a deposit of money in said bank after having knowledge that the hank was insolvent, etc. From an order sustaining a demurrer to the indictment, the State appeals: For points and authorities in chief, on behalf of- the Stale in this case, see State v. McPherson et al., ante, page 547, the brief in chief for appellant…

HoN. J. H. Bo.T-tum, Judge. Action by Diana E. Wallace against George C. Dunton, as administrator, etc., of Edward C. Wallace, deceased, and others, to determine adverse claims to land. From a judgment for defendants, on a trial to the court, plaintiff-appeals.

Hon. George H. Marquis, Judge. Action by George Coulter against Theodore Gudehus, to determine ownership of certain land.

Hon. Frank B. Smith, Judge. Action by Lesbia 'G. Cameron against Alexander Cameron, for divorce. From an order, made after final decree of divorce was entered, granting to plaintiff suit money 'to prosecute an appeal to this Court; defendant appeals.

<p>Grim real Law — Bawdy House. — House of Assignation — Sufficiency of Evidence — Error. - .</p> <p>On .appeal from a judgment of conviction for keeping a bawdy bouse and maintaining a house of assignation, held, the evidence was sufficient to sustain the judgment, and that no prejudicial or reversible error was committed by the trial court.</p>

Hon. Joseph H. Bottom, Judge. Action by W. H. Lyle against Samuel Barnes, in claim and delivery for cattle. From a judgment for plaintiff, defendant appeals. Defendant was not in possession of the property in dispute, either actually or constructively, .at the time this suit was commenced, on May 13,. 1911, and had not been for at least -two. days prior to that time.