Volume 30 — Utah Reports

W. Morse, Judge. Action by John McOready against the Rio Grande Western Railway Company. From a judgment for defendant, plaintiff appeals. APPELLANTS POINTS. In proceedings to condemn land for railroad purposes where plaintiff abandons the action and dismisses the suit, defendant is entitled to recover costs and expenses incurred by reason of the proceedings. (Lewis on Eminent Domain, 1449 et seq.; North Mo. By. v. Lackland, 25 Mo. 515 ; Leisse et al. v. St. Louis By.

E. Chides-ter, Judge. Action by Hyrurn Narren against Telitha Dean Nainey. George Narren intervened. From a judgment for defendant, plaintiff and intervener appeal. APPELLANT'S POINTS. Mere words of gift do not constitute a gift.

L. Bitchie, Judge. Action by Josbua A. Midgley against Jacob Bergerman' and another. From a judgment in favor of plaintiff, defendants appeal. APPELLANTS POINTS.

District; John F. Chid-ester, Judge. J ames Oversou was convicted of grand larceny, and be appeals. APPELLANT'S POINTS. Circumstantial evidence is proof of a minor fact which, by indirection, logically and rationally demostrates the fac-tum probandum. (Season v. State, 67 S. W. 96, 43 Tex. Cr.

W. Morse, Judge. Action by Andrew P. Anderson against H. Halthusen Mercantile Company. From an order granting a motion for nonsuit and denying a motion for a new trial, plaintiff appeals. At tbe time of bearing tbe arguments in tbe case, a verbal order was made and entered on tbe minutes of tbe court dismissing tbe appeal- but it was deemed proper, in order to settle tbe practice respecting appeals, to make a formal statement of tbe grounds tberefor. APPELLANTS POINTS.

L. Ritchie, Judge. Action by Hattie Lee against Salt Lake City. From a judgment for plaintiff, defendant appeals. APPELLANT’S POINTS. A city is under no duty to maintain, or to use any care to maintain, its sidewalks in a safe condition for bicyclists to ride upon. Bicyclists form a comparatively small portion of the public and such a rule would necessitate the expenditure of jiublic funds for private use.

W. Stewart, Judge. Action by Louisa B. Paul against the Salt Lake City Bail-road Company. From a judgment in favor of defendant, plaintiff appeals. APPELLANT’S POINTS. Plaintiff was entitled to show loss of earnings which she had sustained to the time of the trial, and also to instructions on this point requested. (Townsend v. Paola, 25 Am. & Eng. Corp. Oases, 152; ILoplcins v. By., 72 Am.

W. Morse, Judge. Action by Charles Crane against Mary Judge. From a judgment for plaintiff, defendant appeals. APPELLANT’S POINTS. One wbo bas been ousted from possession of his real estate by an open, visible and exclusive possession in another, which has continued uninterruptedly for the limitation period, will be presumed to have knowledge of it.

W. Morse, Judge. Action by Addison Cain against William J. Reeve and another, in which the Colorado Investment Loan Company filed a cross-complaint. From a judgment directing the application of the proceeds of the sale of defendants’ premises, the Colorado Investment Loan Company appeals.

H. Ro-lapp, Judge. Action of replevin by W. A. Wetzel against the Deseret National Bank and others. Emil Ajax intervened. Erom a judgment for plaintiff and intervener, defendants appeal.

Armstrong, Judge. Suit by Jewet B. Francis against Matbew T. Gisborn. From a judgment sustaining a demurrer to tbe complaint and dismissing tbe suit, plaintiff appeals. APPELLANT’S POINTS.

W. Stewart, Judge. Action by O. A. Nicbols against tbe Daily Eeporter Company. From a judgment for plaintiff for nominal damages, be appeals. APPELLANT'S POINTS. “There is a broad distinction between actions for spoken and actions for written and published words.

H. Hart, Judge. Action by William Morgan, as administrator of John Morgan, deceased, against the Oregon Short Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals. . APPELLANT’’S POINTS. It was for the jury to say whether it was from the observations taken as described by the witness or from some other reasons or circumstances that he fixed the stops by particular telegraph poles.

W. Stewart, Judge. Action by Anna M. Larkin against the Saltair Beach Company. From a judgment for plaintiff, defendant appeals. APPELLANT'S POINTS. The act of Wells, who stood in loco parentis was the sole and proximate canse of the injury.

'Action by C. Beldin Snyder against W. K>. Pike. Erom a judgment for plaintiff, defendant appeals. APPELLANT^ POINTS. Where there is an assignment of the mortgage it will not pass or transfer the debt or note which the mortgage secured without also assigning the debt or note; for the indebtedness is not considered as passing by a mere transfer and assignment of the mortgage. (20 Am. and Eng.

W.• Morse, Judge. Action by tbe K. P. Mining Company against Tony Jacobson. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS.

L. Bitchie, Judge. Action by Mary Helstrom against Isaac Bodes. From a decree in favor of defendant, plaintiff appeals. APPELLANT'S POINTS. Plaintiff claimed that having obtained a patent for the Julia Lode free and untrammeled, that she was entitled to the possession of tbe whole claim, together with what improvements there was on it when she bought it from the United States Government, which would include everything claimed by Rhodes.

0. Hall, Judge. Action by the Corporation of the members of the Church of Jesus Christ of Latter-Day Saints, residing in the Fifteenth Ecclesiastical Ward of Salt Lake Stake of Zion, against Helen Watson. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. The deed upon which plaintiff relied had been before this court before and had been declared void, under the evidence introduced on that trial.

<p>1. CORPORATIONS — Foreign Corporations — Doing Business Within State. — The doing of a single act or the making of a single contract by a foreign corporation in the line of its business within .the state, without having complied with the statutes regulating foreign corporations, does not constitute “doing business” within the state, within Constitution, article 12, section 9, prohibiting corporations from doing business in the state without having a place of business, with an agent on whom process may be served, and without first filing a certified copy of articles of incorporation with the secretary of state.</p> <p>2. Same — Assignments — Executed Contracts — Bight to Sue.— Constitution, article 12, section 9, prohibits corporations from doing business within the state without having a place of business, with an agent on whom process may be served, and without first filing a certified copy of articles of incorporation with the secretary of state. Kevised Statutes 1898, section 351, requires foreign corporations to file a certified copy of their articles with the secretary of state, etc., and section 352 provides that foreign corporations failing to comply shall not be entitled to the benefits of the corporation laws of the state. Held, that the term “benefits” did not include the right to sue, and that a foreign corporation, not having complied with such sections, was not thereby precluded from maintaining a suit against a citizen on a contract made in Utah and executed on the part of the corporation, which was not illegal in itself, and. on claims of others assigned to it not in the ordinary course of its business.</p> <p>'BABTCH, O. J., dissenting.</p>

0. Hall, Judge. Suit by Louis Fayter against Marian K. North and others. From a decree in favor of plaintiff, defendants appeal. APPELLANT'S POINTS. It is fundamental that in order for a thing to pass as an appurtenance it must belong and be appendant to the thing granted. (2 A. & E. Ency. Law (2 Ed.), 523-4.) It is essential as a preliminary requisite that such an easement should have in fact been used by the owner during the unity of the tenements.

H. Hart, Judge. Actions by L. R. Rogers and by Jesse J. Driver against tbe Ogden Building & Savings Association. In tbe latter action W. W. Crossman and L. R. Rogers intervened, after wbicb tbe actions were consolidated and tried together. From a judgment rendered in favor of Rogers, Driver and Crossman appealed. APPELLANT'S POINTS.

<p>Appeal from District Court, Third District; S. W. Stewart, Judge.</p> <p>Action by the Red Wing Gold Mining Company against William D. Clays. From a judgment for defendant, plaintiff appeals.</p>

H. Bolapp, Judge. Action by Nicholas Smith against the Oregon Short Line Eailroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. We insist that the owner of the land at the time, and his grantee, the plaintiff, are by law estopped to recover the said lands. Upon this point we cite the court to the following cases: Hanlon v. TJ. P. By. Go. [Neb.], 58 N. W. 590; Campbell v. Indiana, etc. Bd.

W. Maughn, Judge. Proceedings for the settlement of the estate of Charles Bunting, deceased. Erom an order denying the petition of Grace Bunting to set aside an order fór the issuance of letters of administration to W. D. Biter, and to revoke and cancel such letters, she appeals. APPELLANT’S POINTS. If the jurisdiction of the person of the defendant is to be acquired by publication of the summons, in lieu of personal service, the mode prescribed must be strictly pursued.

W, Stewart, Judge. Action by Louis Yiallet against tbe Consolidated Eailway & Power Company. Prom a judgment for defendant, plaintiff appeals. APPELLANT’S POINTS.

D. Lewis, Judge. Action by Matilda Tuckett against tbe American Steam & Hand Laundry. From a judgment of nonsuit, plaintiff appeals. APPELLANT'’S POINTS.

<p>1. Burglary — Evidence—Sufficiency.—: In a prosecution for burglary, evidence held insufficient to support a convietion.1</p> <p>2. Criminal Law — Evidence—Weight and Sueeicienoy. — It was incumbent on the jury to acquit the defendant, if the evidence relied on could be reconciled on any reasonable hypothesis consistent with the innocence of the defendant, especially where the evidence is wholly circumstantial, and there is no direct proof of the corpus delicti.</p> <p>3. Same — Confessions.—Evidence of an admission or confession by the accused in criminal case should be received and acted on with caution, especially where the evidence is conflicting.</p>

W. Stewart, Judge. Action by Joseph Obemdorfer against George W. Moyer. From a judgment in favor of plaintiff, defendant appeals. APPELLANTS POINTS. An account, stated in an agreement, between parties who have bad previous transactions of a monetary character, that all the items of the accounts representing such transactions’are true, and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. (1 Am. and Eng.

H. Maug-han, Judge. Action by Jobn Y. Rich against tbe Utah Commercial and Savings Bank. From tbe judgment, defendant appeals. APPELLANT'S POINTS. Wben there bas been sucb an intermixture of goods owned by different persons that tbe property of each can no longer be distinguished, what is denominated a confusion of goods bas taken place. (Hesseltine v. Stockwell, 30 Me. 237, 50 Am.

L. Ritchie, Judge. Action by Richard Howe against Isaac Sears and another. From a judgment for defendants; plaintiff appeals. APPELLANT'S POINTS. The statute of limitations on judgments- does not commence to run until the expiration of the time within which an appeal may be taken. A judgment is not final so as to support an action thereon while the judgment debtor retains the right to appeal therefrom or prosecute proceedings for a new trial.

Appeal, from District Court, Third District; Geo. G. Armstrong, Judge. Petition by Charles W. Johnson for letters of administration on the estate of William George Owens, deceased. Subsequently a petition was filed by Margaret Williams and another praying that S. B. Armstrong be appointed adminis-tratar. From an arder granting letters to Johnson, Williams and Armstrong appeal. appellant's points. A creditor, is not entitled to letters if any of tbe relatives will accept.

A. Howell, Judge. Action bj Carl J. Grandin against the Southern Pacific Company. Prom a judgment for plaintiff, defendant appeals. If no demand for a jury be made in writing or orally, or if a party, who has made demand properly, fail to appear at the trial, in either event, there will be a waiver of the jury.

ApplicatioN by the Oregon Short Line Railroad Company for writ of certiorari to review a judgment rendered by the district court of tbe Third judicial district, in an action brought by one O. O. Oarty against petitioner.

W» Morse, Judge. Actiou by Benjamin Sanford against Mark Kunkel and others, to foreclose a mechanic’s lien, in which A. H. Walsh and an other intervene. From a judgment in favor of plaintiff and interveners for less than the relief demanded, they appeal. APPELLANT'S POINTS.

Action by Swen O. Nielson against Otto Peterson, in which Ellen Peterson intervened. From a judgment in favor of plaintiff, intervener appeals. APPELLANT'S POINTS. The principle, if not the sole object of homestead exemption laws is to protect debtors and their families in the possession and enjoyment of their homes, so as to give the wife and family a place to lay their head. (15 Am. and Eng. Ency. Law [2 Ed.], 526; Parsons v. Livingston [Iowa], 'll Am.

<p>Appeal from District Court, Second District; J. A. Howell, Judge.</p> <p>J. H. Winslow, Jr., was convicted of attempt to- commit incest, and appeals.</p>

W. Maughan. Condemnation proceedings by Brigham City against George B. Chase. There was judgment for plaintiff, and defendant appeals. APPELLANTS POINTS.

<p>i Criminal Law — Evidence — Handwriting.— In a prosecution for statutory rape, in which prosecutrix claimed to have received certain letters from defendant but admitted that she had never seen him write nor seen a specimen of his handwriting admitted to be genuine, and was not an expert at handwriting, she' was not competent to testify that the letters were written by defendant, although she claimed that he had admitted having written two of the letters.</p> <p>STRAUP, J., dissenting.</p>

A. Howell, Judge. Judicial proceedings on tbe settlement of tbe estate of Joseph P. Lowham, deceased.

<p>1. Ceiminal Law — Continuance — Absence of Witnesses — Diligence. — A motion for a continuance because of the absence of witnesses was properly denied, where the affidavit in support of the motion, though reciting that defendant caused a subpoena to be issued for the witnesses, did not show that he communicated or attempted to communicate with them, nor that any other effort was made to procure their attendance, though they had expressed a willingness to testify, and where no facts were stated tending to show that there was a probability that they would be present at the ensuing term of court, or that their testimony could be procured within a reasonable time.</p> <p>2. Same — Evidence — Handwriting —Identification.—On an issue as to whether a certain letter was written by defendant, a witness who had seen defendant write but once was competent to testify.</p> <p>3. Same — Typewritten Letters — Machine Used — Expert Testimony. — On an issue as to whether certain typewritten letters were written by defendant, testimony by an expert that a comparison of the letters with the work done by a certain typewriting machine in the town where defendant lived indicated, because of defects in the type and in the alignment thereof, that the letters were written on the machine in question, was competent.</p> <p>4. Same — Secondary Evidence. — Where, in a prosecution for adultery, the state claimed that certain letters had been written by defendant’s alleged paramour to defendant and notified the defendant to produce these letters, which he did not do, evidence by the woman who wrote them as to their contents was admissible.</p> <p>5. Same — Letters — Indentieicatton — Sufficiency.— In a prosecution for adultery, the state claimed that a number of letters had been written by defendant’s alleged paramour to him, and that she had received replies containing incriminating matter, all but one of which replies were typewritten, and all of which were unsigned. • The alleged paramour, though admitting that she had seen defendant write but once, testified that the handwriting of the only letter not typewritten was that of defendant, and that the address on the envelope of one of the typewritten letters was also in defendant’s handwriting. Meld, that the letters were admissible in evidence against defendant.</p>

L. Ritchie, Judge. Action by the Honerine Mining & Milling Company and another against the Tallerday Steel Pipe & Tank Company and another. Erom an order quashing service of summons, plaintiffs appeal.

' Appeal from District Court, Weber county; J. A. Hoivell, J udge. Action by Tbe John Ainsfield Company against O. D. Rasmussen. From a judgment for plaintiff, defendant appeals. APPELLANT'S POINTS. These bills of lading represented the goods.

<p>1. Appeal and Error — Record — Bill of Exceptions —Certificate as to Evidence. — A judge’s certificate to a bill of exceptions, reciting: “Inasmuch as the foregoing matters do not otherwise appear of record, I hereby certify that this bill of exceptions has been by me settled and allowed”— does not show that the bill contains all the evidence, so as to justify a consideration on appeal of the sufficiency of the evidence.</p> <p>2. Same —Incorporation oe Evidence — Necessity.— Where it is not made to appear that the bill of exceptions contains all the evidence as to certain points, objections to its insufficiency on such points cannot be considered on appeal.1</p>

L. Itichie, Judge. Action by Antonio Sciutti against the Union Pacific Coal Company. Prom a judgment for plaintiff, defendant appeals-. STATEMENT OE PACTS. Tbis action was brought to recover damages for personal injuries which the plaintiff alleged'he sustained through the negligence of the defendant.

D. Lewis, Judge. Action by Joseph Baumgarten against James Chipman and another. From a judgment for defendants, plaintiff appeals., APPELLANT’S POINTS. “If a party has knowledge of such facts as would lead a fair and prudent man to use ordinary caution to make further inquiry, and he avoids the inquiry, he is chargeable with notice of the facts which by ordinary diligence he would have ascertained.

• Appeal from District Court, Box Elder County; W. W. Maughan, Judge. Action by Cbristena J. Larsen against Jens C. Gasberg. Erom a judgment for plaintiff, defendant appeals. APPELLANT'S POINTS. “A fraudulent conveyance is no conveyance as against the interest intended to be defrauded.” (14 Ency. of Law, p. 311, notes 4, 5 and 6. Bull v. Ford, 66 Cal. 176; Bank v. Bisley, 75 Am. Dec. 351; Duvall v. Waters, 18 Am.

<p>1. Replevin — Complaint—Sueeiciency—Allegation as to Ownebship. — In a suit to recover personal property, the complaint must show that plaintiff was the owner or entitled to possession of the property at the time of the commencement of the action, and it is not sufficient to aver that he was the owner and entitled to possession on the day preceding the filing of the complaint.</p> <p>2. Chattel Mortgages — Possession by Mortgagee — Action—Evidence. — In an action by a chattel mortgagee to recover certain sheep under a provision in the mortgage giving him the right to take possession of the property on default in payments, evidence examined, and held sufficient to show that the mortgagor owned the sheep at the time of the execution of the mortgage and to identify the property therein described.</p> <p>3. Sales — Bailment Distinguished. — A lease of sheep under an agreement that they shall be branded with the lessee’s mark, and commingled with sheep of his own haying the same mark, the lessors to be paid so much wool per sheep and a certain rate of increase each year, is a bailment and not a sale.1</p>